the ppesence of this Book
thej.m. kelly
has Been made possiBle
thpouqh the qeneposity
Stephen B. Roman
From the Library of Daniel Binchy
GAI
INSTITVTIONES
OR
INSTITUTES OF ROMAN LAW
BY GAIUS
WITH A TRANSLATION AND COMMENTARY
BY THE LATE
EDWARD POSTE, M.A.
FOURTH EDITION, REVISED AND ENLARGED BY
E. A. WHITTUCK, M.A., B.C.L.
WITH AN HISTORICAL INTRODUCTION BY
A. H. J. GREENIDGE, D.Lrrr.
OXFORD
AT THE CLARENDON PRESS
MDCCCCIV
HENRY FROWDE, M.A.
PUBLISHER TO THE UNIVERSITY OF OXFORD
LONDON, EDINBURGH
NEW YORK
PREFACE
THE death of the author of this Commentary and Translation
has taken from us one who in the intervals allowed him by
his official duties gave himself with single-minded devotion to
the acquisition and furtherance of knowledge. ' Omnium, quos
cognovi, doctissimus ' were the words in which Mr. Poste's great
erudition was commemorated by the Vice-Chancellor of the
University, the distinguished head of the distinguished College
of which Mr. Poste was almost the senior Fellow ; and certainly
no one can read this Commentary without being impressed
by the writer's philosophic spirit and extensive learning. It
is especially remarkable that a scholar, who was never engaged
in the teaching or practice of law, should have produced
a legal textbook, which perhaps more than any other makes
intelligible to English students the teaching of the great German
masters of Roman jurisprudence and at the same time never fails
.to be interesting by reason of its own force and individuality.
In re-editing this well-known work, at the request of Mr. Poste's
executors and of the Delegates of the Clarendon Press, my
endeavour has been to preserve as far as possible the character
which Mr. Poste himself gave it, while making such alterations
as seemed to be required at the present time. As Mr. Poste
never revised his Translation and Commentary with any com-
pleteness since they were first published, their revision for this
edition has been a more considerable undertaking than would
otherwise have been the case. ' It should be noticed that the
part of the Commentary relating to analytic jurisprudence has
been much curtailed in the present edition. This has been done
by the advice of persons engaged in the teaching of Roman
law at Oxford, who are of opinion that the insertion of so much
matter bearing on the general theory of law has rendered the
Commentary unnecessarily difficult to students and that the
subject is one better left to independent treatises. The omission
of the Preliminary Definitions on this account has made it
possible to introduce into the book an Historical Introduction
to Gaius, which has been written by Dr. Greenidge, who is well
ii PREFACE
known for his writings on Roman constitutional history, and for
his special Treatises on ' Infamia ' and on ' The Legal Procedure
of Cicero's Time.'
The text of Gaius adopted is that of the last edition of Krueger
and Studemund, which its German proprietors have again most
kindly allowed us to use. In this text the numerous lacunae
are only filled up, where from passages in the Institutes or other
sources the missing words may be inferred, at least with a very
high degree of probability. Some other conjectural readings,
more or less followed in the Translation, will be found in the
Appendix. It is to be hoped that in some future edition of
this book a Critical Apparatus may be supplied by a competent
hand. In the meantime the student should more especially refer
to the notes on the text appended to Krueger's and Studemund's
Gaius. He may also consult with advantage the notes to the
late Professor Muirhead's edition of Gaius, though the valuable
textual criticism to be found there requires revision in the light
of more recent research.
In conclusion, I have to express my obligations to my old
friend and pupil Mr. Ledlie, the translator of Sohm's Institutes,
for many helpful suggestions. Another old friend and pupil,
Dr. Potts, has also rendered me valuable aid, especially in the
preparation of the Index and of the Chronological Table. My
friends Dr. Schuster and Dr. Greenidge have given me useful
information on several points about which I have consulted
them.
E. A. WHITTUCK.
CLAVERTON MANOR, BATH,
October 17, 1904.
CONTENTS
HISTORICAL INTRODUCTION ....
BOOK I
STATUS OR UNEQUAL RIGHTS [DE PERSONIS]
PAGE
ix-lv
SECTION
1-7
9-12
13-47
48-50
51-54
55-107
108-1156
116-123
124-141
142-196
197-200
SOURCES OR ORIGINS of law, or various ORGANS of
legislation. CIVIL law, and NATURAL law . . . 1-13
DIVISIONS OF LAW 13-18
The subjects of the Civil Code are
(1) UNEQUAL RIGHTS (PERSONAE, Book I) ;
(2) EQUAL RIGHTS (RES, Books II and III) ;
(3) PROCEDURE (ACTIONES, Book IV).
STATUS or INEQUALITY of rights divides the members
of society into nine classes : the Freeborn, the Freedman,
the Slave ; the Citizen, the Latin, the Alien ; the Father of
the household, the Son of the household, the Bondsman . 18-20
FREEDMEN .... .... 20-35
Dependent and Independent Persons 35
SLAVES . it 36-39
PATERNAL POWER, the modes in which it originates . 39-66
MARITAL POWER, the modes in which it originates . . 66-73
BONDAGE, the mode in which it originates .... 74-78
Modes in which PATERNAL POWER, MARITAL POWER,
and BONDAGE are terminated 78-87
INEQUALITIES among those who are INDEPENDENT
(Fathers of their household).
GUARDIANSHIP, classes and modes in which it originates
and terminates 87-113
CURATORS . 114-116
IV
CONTENTS
SECTION
BOOK II
EQUAL RIGHTS [DE REBVS].
PAGE
EQUAL EIGHTS are
(1) SINGLE (RES SINGVLAE);
(2) COLLECTIVE (IVRVM VNIVERSITATES).
Single rights are
(1) REAL (IVS IN REM);
(2) PERSONAL (IVS IN PERSONAM).
Real rights are (not to mention PRIMORDIAL rights)
(1) UNLIMITED (DOMINIVM or OWNERSHIP) ;
(2) LIMITED (SERVITVS or SERVITUDE).
SINGLE RIGHTS (RES SINGVLAE), and in the first place
the REAL RIGHTS of OWNERSHIP and SERVITUDE
(one branch of RES SINGVLAE).
Divisions of RES 122-128
TITLES or facts originative of REAL rights, whether
OWNERSHIP OR SERVITUDE . . . 128-163, 164-168
Ownership without power of alienation, and power of alienation
without ownership 163, 168
Alienation by WARDS 169-170
INSTRUMENTS of Acquisition of Real rights . . . 170-175
COLLECTIVE RIGHTS [IVRVM VNIVERSITATES].
The TITLES by which a person is invested with Collective
rights, in other words, the TITLES of UNIVERSAL
SUCCESSION, are five, Testamentary disposition, Intestacy,
Insolvency, Adrogation, and Manus or Marital power . .175
101-190 WILLS . 176-226
191-245 LEGACIES. Legacies are Titles to RES SINGVLAE, but
are introduced in this place as being accessory to WILLS . 226-246
FIDUCIARY BEQUESTS.
246-259 COLLECTIVE FIDUCIARY BEQUESTS .... 246-258
260-289 SINGLE FIDUCIARY BEQUESTS, though examples of
RES SINGVLAE, are introduced in this place as being
accessory to Wills 258-268
1-14
14a-79
62-64
80-85
86-96
97-100
BOOK III
INTESTACY or title by DESCENT.
1-38 ORDER of Intestate Succession .
89-76 Successions to FREEDMEN, testate and intestate .
269-283
283-300
CONTENTS v
SECTION PAGE
77-87 Successions by INSOLVENCY, ADEOGATION, MARITAL
POWER, transfer of Inheritance 301-315
PERSONAL RIGHTS, or OBLIGATIONS [the other branch
of RES SINGVLAE], and their TITLES.
88-162 Obligations founded on CONTRACT 315-387
163-167 INSTRUMENTS of acquiring Obligation .... 387-389
168-181 EXTINCTION of Obligation . . 389-401
182-225 Obligations founded on DELICT 402-431
ADDENDUM . . - 432-441
BOOK IV
PROCEDURE [DE ACTIONIBVS].
1-9 CLASSIFICATION of Actions
10-29 STATUTE-PROCESS or ANCIENT method of Procedure .
30-38 FORMULARY Procedure, FICTION
39-68 Component parts of the FORMULA
69-81 ACTIONS on account of the Contracts and Delicts of others .
82-87 REPRESENTATION of the principal parties to an action .
88-102 SECURITIES to be given by the parties to an action
103-109 STATUTORY actions.
NON-STATUTORY actions, or actions founded on the executive
authority of the Praetor .......
110-113 PERPETUAL actions, or actions which can be instituted at
any date from their nativity (in later times within twenty
or thirty years from their nativity), and TEMPORARY
actions, or actions that must be instituted within a certain
date (usually a year) from their nativity. Actions TRANS-
MISSIBLE or NOT-TRANSMISSIBLE to the heirs of the
principal parties
114 Title of defendant subsequent to Li'tis contestatio
115-137 NEGATION and EXCEPTION, or NULLITY, NULLIFI-
CATION, COLLISION, of rights
138-170 INTERDICT and POSSESSION and DETENTION .
171-187 VEXATIOUS litigation. Actions which carry infamy. Summons
and security for reappearance
APPENDIX
442-454
454-470
470-480
480-515
515-524
524-527
527-534
534-544
INDEX
544-554
554-555
555-581
582-620
620-623
629
633
EXPLANATION OF ABBREVIATIONS
Inst. Institutes of Justinian.
Dig. Digest or Pandects of Justinian.
Cod. Code of Justinian.
Nov. Novellae Constitutiones or Novels of Justinian.
The meaning of the numbers that follow these abbreviations will be obvious
to any one who opens a volume of the Corpus Juris.
Pr. stands for principio, meaning, in the first paragraph of a title of the
Institutes, or of a fragment of a title of the Digest, or of a ' lex ' of a title
of the Code.
The Commentaries of Gaius are referred to by numbers indicating the book
and the paragraph: e.g. 2 § 5, indicates the 5th paragraph of Book 2.
When the reference is to another paragraph in the same book, the book
is omitted.
When Ulpian or Paulus are quoted, the works referred to are the Ulpiani
Fragmenta or Excerpta ex Ulpiani Libro singulari Regularum, and the
Sententiae Receptae of Paulus.
Fragm. Vat. Fragmenta Juris Romani Vaticana.
(For the Jus antejustinianum see Huschke's or Krueger's Collections of
ante-Justinian legal writings.)
When Savigny, Vangerow, Keller, Bethmann-Hollweg, Ihering, Kuntze,
Windscheid, Dernburg, Lenel, Sohm, Muirhead, and Robyare simply cited,
the references are to Savigny, System des heutigen romischen Rechts ;
Vangerow, Lehrbuch der Pandekten ; Keller, Der rSmische Civilprocess
und die Actionen ; Bethmann-Hollweg, Der romische Civilprozess ;
Ihering, Geist des rOmischen Rechts auf den verschiedenen Stufen seiner
Entwicklung ; Kuntze, Institutionen und Geschichte des romischen
Rechts ; Windscheid, Lehrbuch des Pandekten-Rechts ; Dernburg, Pan-
dekten ; Lenel, Das Edictum Perpetuum, ein Versuch zu dessen Wieder-
herstellung; Sohm, The Institutes — A Text-book of the History and
System of Roman Private Law (translated by J. C. Ledlie), 2nd ed. ;
Muirhead, Historical Introduction to the Private Law of Rome, 2nd ed. ;
Roby, Roman Private Law in the times of Cicero and of the Antomnes.
CHRONOLOGICAL TABLE
B.C.
753 Traditional Date of Foundation of
Home.
578-535 Servius Tullius. Division into
thirty Tribes. Military Organi-
zation of Centuries. Institution
of Census.
509 Office of Consuls instituted.
494 First Secession of Plebs. Institu-
tion of Tribuni Plebis.
451-448 Law of the Twelve Tables.
449 Second Secession of Plebs —
Leges Valeriae Horatiae.
445 Lex Canuleia, legalizing marriages
between Patricians and Ple-
beians.
443 Censorship established.
366 Office of Praetor established.
326 Lex Poetelia about this time.
304 Cnaeus Flavius publishes forms
of actions and calendar of dies
fasti and nefasti.
300 Lex Ogulnia, admitting Plebeians
to College of Pontiffs.
287 Last Secession of Plebs —
Lex Hortensia.
Lex Aquilia.
280 Tiberius Coruncanius (subse-
quently first Plebeian Pontifex
Maximus), Consul.
242 First appointment of a Praetor
Peregrinus about this time.
204 Lex Cincia.
198 Sextus Aelius Paetus (earliest
commentator on the Twelve
Tables), Consul.
170-150 Lex Aebutia probably enacted
within this period.
169 Lex Voconia.
105 P. Butilius Rufus, Consul.
95 Q. Mucius Scaevola (pontifex),
Consul.
92 Sulla, Dictator.
89 End of Social War.
Leges Corneliae.
66 C. Aquilius Gallus, Praetor.
63 Cicero, Consul.
59 Julius Caesar, Consul.
51 Servius Sulpicius, Consul.
49 Accession of Julius Caesar to
supreme power.
Lex Rubria.
45 Lex Julia municipalis.
44 Assassination of Caesar.
40 Lex Falcidia.
27 Caesar Octavianus receives title of
Augustus (first Constitution of
the Principate).
23 Second and final Constitution of the
Principate.
27-14 A. D. Principate of Augustus.
M. Antistius Labeo.
C. Ateius Capito.
18 Lex Julia de adulteriis et de
maritandis ordinibus.
A. D.
4 Lex Aelia Sentia.
6 Lex Julia de vicesima hereditatium.
9 Lex Papia Poppaea.
14-37 Tiberius, Emp.
Masurius Sabinus.
Proculus.
19 Date to which Lex Junia (Norbana)
is generally ascribed.
30 C. Cassius Longinus, Consul.
37-41 Caligula, Emp.
41-54 Claudius, Emp. —
Lex Claudia.
S. C. Claudianum.
46 S. C. Vellaeanum or Velleianum.
54-68 Nero, Emp.—
S. C. Neronianum.
62 S. C. Trebellianum.
68 Galba, Emp.
Vitellius, Emp.
68-79 Vespasian, Emp.
70 S. C. Pegasianum.
79-81 Titus, Emp.
81-96 Domitian, Emp.
96-98 Nerva, Emp.
98-117 Trajan, Emp.
117-138 Hadrian, Emp.
Edictum Perpetuum of Salvius
Julianus.
138-161 Antoninus Pius, Emp.
First and part of second book
of Gaius probably written
at this time.
161-180 M. Aurelius Antoninus, Emp.
Institutes of Gaius probably
completed under this Em-
peror.
178 S. C. Orfitianum.
180-193 Commodus, Emp.
193 Pertinax and Julianus successively
Emperors.
193-211 Septimius Severus, Emp.
204 Papinian, praefectus praetorio.
Vlll
CHRONOLOGICAL TABLE
A. D.
211-217 Caracalla, Emp.—
Papinian killed.
Edict of Caracalla — extending
citizenship.
217-218 Macrinus, Emp.
218-222 Elagabalus, Emp.
222-235 Severus Alexander, Emp.
222 Ulpian, praefectus praetorio.
228 Ulpian killed.
235-238 Maximinus, Emp.
238 Gordianus I and II, Emp.
238-244 Gordianus III, Emp.
244-249 Philippus, Emp.
249-251 Decius, Emp.
251-253 Trebonianus Gallus, Emp.
253 Aemilianus, Emp.
253-260 Valerian and Gallienus, joint
Emperors.
260-268 Gallienus, sole Emperor.
268-270 Claudius II, Emp.
270-275 Aurelian, Emp.
275-276 Tacitus, Emp.
276 Florianus, Emp.
276-282 Probus, Emp.
282-283 Cams, Emp.
283-284 Carinus and Numerianus,
joint Emperors.
285 Carinus, sole Emperor.
285-286 Diocletian, sole Emperor.
A. D.
286-305 Diocletian and Maximian,
joint Emperors.
305-306 Constantius I and Galerius,
joint Emperors.
306 Constantius I, Galerius, and Con-
stantino the Great, joint Em-
perors.
307-311 Galerius, Constantine the
Great, and Licinius, joint Em-
perors.
311-323 Constantine the Great and
Licinius, joint Emperors.
323-337 Constantine the Great, sole
Emperor.
330 Constantinople, the seat of govern-
ment.
337-340 Constantius II, Constan-
tine II, and Constans I, joint
Emperors.
340-350 Constantius II and Constans I,
joint Emperors.
350-361 Constantius II, sole Emperor.
361-363 Julian, Emperor.
363-364 Jovian, Emperor.
364 Valentinian I and Valens, joint
Emperors. They divided the
Empire into the Western and
Eastern.
A.D. WESTERN EMPIRE. A, D. EASTERN EMPIRE.
364-367 Valentinian I, Emp. 364-378 Valens, Emp.
367-375 Valentin ian I and Gratian, Emp. 378-392 Theodosius I, Emp.
375-383 Gratian and Valentinian II, Emp.
383-392 Valentinian II, sole Emperor.
392-395 Theodosius I, Emperor of East and West.
395-423 Honorius, Emp. 395-408 Arcadius, Emp.
408-423 Theodosius II, Emp.
423-425 Theodosius II, Emperor of East and West.
425-455 Valentinian III, Emp.
426 Law of Citations.
439 Codex Theodosianus.
455 Petronius Maximus, Emp.
Sack of Rome by the Vandals.
455-456 Avitus, Emp.
457-461 Major ian, Emp.
461-467 Government practically in
hands of the barbarian Ricimer.
467-472 Anthemius, Emp.
472 Olybrius, Emp.
472-475 Julius Nepos, Emp.
475-476 Romulus Augustulus, Emp.
End of Western Empire.
500 Lex Romana Burgundionum.
506 Lex Romana Visigothorum, or
Breviarium Alarici, containing
Epitome of Gaius.
511-515 Edictum Theodorici (Lex
Romana Ostrogothorum).
425-450 Theodosius II, Emp.
450-457 Marcian, Emp.
457-474 Leo I, Emp.
474 Leo II, Emp.
474-491 Zeno, Emp.
491-518 Anastasius I, Emp.
518-527 Justin, Emp.
527-565 Justinian, Emp.
Tribonian.
528 Code ordered.
529 Code published.
530 Digest ordered.
533 Digest and Institutes published.
534 Revised edition of Code published.
HISTORICAL INTRODUCTION
IN order to justify the character of this introductory essay it is
necessary to say a few words about the intention with which it is
written. The reader must regard it mainly in the light of an intro-
duction to the Institutes of Gaius, not in the light of a disinterested
sketch of the history of Eoman Law. Had it been intended to have
the latter character, both some of its omissions and some of its
inclusions would be wholly unjustifiable. The most signal of the
omissions is the neglect to give an adequate treatment to the stage of
Roman Law which yields to no other in importance — the stage at
which it passes from the religious to the secular sphere, from Fas to
Jus. One of the chief questions which is, or should be, agitating
students of Koman Law at the present day, is that of the period at
which this transition was effected. For, if it is true that Roman Law
retained its priestly character and its religious sanctions to a late
period of the Republic l, then the traditional history of the Twelve
Tables is an improbability, and the account given by Cicero and
other writers of the legislation and procedure of the Monarchy and
early Republic is an anachronism. The student of Gaius, however,
is not very intimately concerned with this far-reaching historical
question ; and I have been content to state my general adherence to
the traditional view without attempting to justify it by evidence.
Amongst subjects included in this sketch, which have little direct
bearing on the histoiy of Roman Law, I may mention the descriptions
of the structure of the different Comitia at Rome and the account of
the manner in which the powers of the Princeps were conferred.
From the point of view of the general history of the civil and
criminal law in a State it is not of much importance to determine the
particular mode in which a legislative assembly is constituted, or the
precise manner in which a sovereign (whether nominal or real) is
invested with his authority. But these historical questions do to
some extent underlie subjects which are treated by Gaius ; and, as it
was not found convenient to deal with them at any great length in
the commentary, a place had to be found for them in this intro-
duction.
1 This thesis has been vigorously maintained by Lambert in his work
Lafonction du droit civil compare (1903).
WHITTUCk D
x HISTORICAL INTRODUCTION
§ 1. The Unification and Extension of Roman Law.
The history of Eoman Law begins for us with the traditions that
have been preserved concerning the Koman Monarchy. The exist-
ence of a Monarchy such as that described for us by annalists like
Livy and Dionysius, implies the existence of a consolidated State,
with a central legislative and executive power and a tolerably
uniform system of law. In the Monarchy, however, and even in the
early Eepublic it seems that the system of law was not marked by
perfect uniformity, since the two classes of Patricians and Plebeians,
which made up the Eoman State, appear to have been distinguished,
not only by the possession of different political privileges, but also by
the possession of different systems of customary law '. It is even
possible that a further divergence of practice may have existed in
the most primitive society, or societies, out of which the City and
Monarchy of Eome developed — that a considerable amount of
autonomy in legal relations may have existed in the Clans (Gentes)
and Villages (Vici), out of which the earliest Eome was formed.
The history of Eoman law, from its beginning to its close, would
thus be marked by a process of gradually increasing unification.
First the customs of the Clans were merged in the customs of a
State ; but this State consisted of two classes, Patricians and
Plebeians ; and each of these classes seems to have had a customary
law of its own. Then an attempt was made to create a uniform
system ; and this uniformity was probably secured by making
patrician law approximate as closely as possible to plebeian — the
law of the few to the law of the many. A further advance was
made when Eome had become the mistress of Italy. Italian
customs were made ultimately to conform to those of the leading
State, and the free cities of Italy became the municipalities of Eome.
Lastly, Eome had created an Empire. For a very long period she
adopted the wise and cautious policy of recognizing, as far as possible,
the local and tribal law of the cities and peoples under her control.
The recognition of this local or tribal law was not, however, merely
a symptom of the favourite Eoman principle of non-interference. It
was also a sign that the privileges of Eomans and Italians were not
possessed by provincials ; for the conferment of Eoman citizenship,
or even of Latin rights, necessarily carried with it the use of the forms
of Eoman Private Law 2. Hence, when a time came at which Eome
was willing to raise States or individuals in the Provinces to a level
1 See p. xix.
2 The Latins possessed commercium and some of them conubium. Full citizen-
ship would also be possessed by a considerable class in Latin towns, i. e. by all
who, through holding a magistracy, had become Roman citizens.
EXTENSION OF ROMAN LAW xi
with her own citizens, the law of Eome came to take the place of the
territorial or tribal law of these political units. The process of a
thorough imperial unification by means of a common system of
Eoman Private Law had begun.
§ 2. The Epochs in this process of Unification and
Extension.
The dates of the three epochs which we have touched on can only
be vaguely indicated. We have no knowledge of the year, or even
of the century, when the smaller political units, out of which Eome
was formed, became so thoroughly marshalled under the rule of a
common government that the customs of the Clans were made to
conform to the principles laid down and enforced by a single superior
authority. For the second epoch — the period, that is, at which an
attempt was made to secure a uniform system of law which would
be binding equally on Patricians and Plebeians — tradition does
supply a date, one, however, that has more than once been doubted
by modern writers on Eoman History and Law1. This traditional
date is comprised in the years 451-448 B.C., years which the Eomans
believed to mark the creation of the Decemviral Commission and the
publication of the Law of the Twelve Tables. The third tendency —
that of the unification of Eome with Italy, — although it had begun to
be felt in isolated cases from a very early period of Eoman History,
may be said to have received its final impulse at the close of the great
war for Italian freedom, generally known as the Social war, in 89
B. c. The last epoch — that of imperial unification — may be said to
have been ushered in by the accession of Caesar to supreme power in
49 B. c. It had not been closed even by the time of Gaius, about the
middle of the second century A. D. ; for, even at that late period
the Eastern part of the Empire still abode by Eastern forms of law 2.
It may even be questioned whether the Edict of Caracalla, which
is believed to have extended Eoman citizenship to all the free
inhabitants of that portion of the world that was ruled by Eome,
1 Pais, in his Storia di Roma, has stated the view that the Decemviral Legisla-
tion has been antedated by about a century and a half. He brings it down to
the close of the fourth century B.C. He believes that Appius Claudius, the
Decemvir, is a duplicate of Appius Claudius, the censor of 312 B.C., and that
the story of a publication by the Decemvirs is a duplicate of the story of the
revelation of the forms of Law by Cn. Flavins in 304 B.C. Lamb§rt has gone
still further in a view expressed in three works (La question de Tauthenticite des
XII Tables et les Annales Maximi ; La function du droit civil compare; L'histoire
traditionnelle des XII Tables). He thinks that the Twelve Tables, as a code,
originated with Sextus Aelius Paetus, consul in 198 B.C., whom tradition
regards as their earliest commentator, although he admits that there may have
been successive partial compilations before this date.
2 Mitteis, Reichsrecht und Volksrecht.
ba
xii HISTORICAL INTRODUCTION
between the years 212 and 217 A.D., really eliminated all the local
varieties of customary law. Local customs tend to die hard, and it
was never in the spirit of the Koman Empire to suppress them. The
legal unity of the Empire was always more strongly marked in the
matter of Procedure than in the matter of Substantive Law. The
processes of the Courts were the same for every Province at a time
when the greatest varieties of customary law were recognized by •
these courts.
§ 3. Stages of Roman Legal History — The Clan and the
Family — Evolution of individual rights.
We may now attempt to treat in greater detail the stages of Eoman
Legal History which we have outlined. The earliest stage — that
marked by the independent or almost independent life of the Clan
or Gens — is one for which, by the nature of the case, no definite
historical evidence exists. The reality of such a life is merely an
inference drawn from the characteristics of the Gens as it appears
before us in the historical period. These characteristics seem to
prove that the Gens is not a really primitive institution, but a late
and advanced stage in the social development of the Latin races ; but,
on the other hand, they may show that it was in many respects a
more primitive unit than the State ; that is, that it exercised rights
and duties which were ultimately exercised by the State. No
political society worthy of the name can deal with Clans as the
subjects of rights ; it can deal only with Families or Individuals.
Hence, if the Roman Gens ever lived a strong corporate life, the
authority of the Roman State must in those days have been weak.
The organization of the Gens was based on the patriarchal idea in
its extreme form ; that is, on the conception that relationship is only
binding when it can be traced through the male line. And this is
the fact which seems to prove that the Gens marks a late and
mature stage in the development of Latin societies ; for the patri-
archal idea is not one that is readily grasped by the mind of primitive
man. Yet, late as the Gens is when considered in reference to the
prehistoric development of the Latin race, it perhaps possessed, before
the veiy dawn of history, a unity and power of its own, of which
but pale reflections survive in the historical period. In historical
times the only test of unity was the common name borne by the
Gentiles x ; the chief signs of corporate action were their guardianship
of the insane and their reversionary right of guardianship over
women and children 2 — powers which the Gentiles must have
1 Cic. Top. 6. 29 ' Gentiles sunt inter se, qui eodem nomine sunt.'
2 [Cic.] ad Her. i. 13. 23 ; Cic. pro Domo, 13. 35 ; Gaius, i. 157, ii. 47.
EVOLUTION OF INDIVIDUAL RIGHTS xiii
exercised by delegating their authority to a personal representative.
The further right which they possessed in later times, of succeeding
to intestate inheritances in the last resort l, was perhaps a right
possessed by individual members of the corporation rather than by
the corporation itself. But a corporate activity far greater than this
has been suspected for earlier times. There is indirect evidence that
all Private Land (Ager Privatus) was at one time owned by the
Gentes, not by families or individuals 2, and the view that the
primitive Koman Senate was in some way representative of the
Gentes is in accordance with the belief of Eoman antiquity 8. The
fact that the primitive Roman State was in many ways conditioned
by its clan organization seems to be certain. As the State grew
stronger, it substituted the Family for the Clan. Between the two
there is only a difference of degree. The Family (Familia) is the
aggregate of the members of a household under a common head, the
Paterfamilias ; whereas the Gens is the aggregate of all individuals
who bear a common name and who, therefore, if their ancestry
could be traced in the male line through all its stages, would be
found to be the descendants of some ultimate common ancestor.
But the Familia is a far smaller, and therefore a far less powerful,
unit than the Gens. It cannot so effectively dominate the State or
impede its activities4. Again, the heads of families are many in
number ; the heads of the Gentes (who must have existed at the
time when the Gens was the important unit) were necessarily few.
The State which deals with families deals with a multitude of
individuals, not with an oligarchy representing the interests of a
number of corporations. The conception of individual rights, in
their modern sense, was, it is true, never fully recognized in Roman
Private Law. It was impeded by the Patria Potestas — the life-long
power of the father over the son. But much was ultimately done to
lessen the rigour of this patriarchal rule ; and the principles of
Roman Law were finally extended to races which knew nothing
of the Patria Potestas. This law ultimately gave the most perfect
expression hitherto witnessed by the Wbrld of rights which were
both universal and individual. The existence of the Empire gave
Rome the power, possessed in as high a degree by no other State, of
dealing with the individual on universal lines, because she was not
hampered by the barriers between man and man thrown up by
separate national institutions.
1 Ulpian in CoUatio, 16. 4. 2 ; cf. Gaius, iii. 17.
2 Mommsen, Staatsr. iii, p. 23 foil.
3 Cic. de Hep. ii. 20. 35 ; Liv. i. 35.
* See Daily News, Sept. 5, 1901 (< The Genius of Rome ').
xiv HISTORICAL INTRODUCTION
§ 4. Early Religious Law (Fas) — The Leges Regiae — The
Secularization of Law.
A process, which runs parallel with that which we have just de-
scribed, is the process by which Eoman Law came to be secularized ;
the process, that is, by which human were gradually substituted for
divine sanctions. The customary law of a primitive society is either
identical with, or developed from, some form of belief which implies
the omnipresence of the gods and their detailed interest and activity
in human affairs. In primitive Eome the pleading (actio) of the
litigant in a civil suit is a religious chant, every word and cadence
of which must be learnt from the priest ; the wager (sacramentum),
by which the process is stated, is a gift to a temple, and is probably
conceived as an atonement for the involuntary perjury of the man
who loses his case 1 ; the penalties of the criminal law are means of
expiating the anger of the gods, the severest form of atonement being
the sacrifice of the sinner on the altar of the deity whom he has
offended 2. Eome in the historical period still preserves many traces
of these beliefs of her infancy. They are found in the respect for
the Auspices, in the conservatism which maintained the cumbrous
forms of the old pleadings (actiones) and the custody of these forms
by the Pontifical College ; in the varied methods by which crime or
sin is punished, some offences being reserved wholly for the secular
courts, others being visited by the judgments of the Pontifical
College, others again being subject to the milder chastisement of the
Censor before he performs the religious rite of Purification (Lustratio).
But the belief of the Eomans themselves was that, in the very earliest
stages of their recorded or imagined history, the primitive epoch of
complete subservience to religious forms, if it ever existed, had been
already passed, and that even in the time of the Kings something
approaching a clear line could be drawn between the functions of
Eeligious Law (Fas) and those of Secular Law (Jus). At the close of
the history of the Eepublic there could be shown, in contradistinction
to the great secular code of the Twelve Tables, a collection of religious
ordinances, believed to be even more ancient than this code, and
known as the Laws of the Kings (Leges Eegiae) 3. These laws are
' not represented as having formed a code, but merely a compilation.
They were believed to be regal ordinances, issued by different Kings,
1 See Danz, ' Das Sacramentum und die lex Papiria,' in Zeitschr. f. R. G. vi
(1867), p. 339 foil. ; Der sacrale Schuts, p. 151 foil.
2 This must have been the original meaning of the mnsecratio capitis, the
penalty of the leges sacratae. See Liv. iii. 55 ; Festus, p. 318 ; Bouche-Leclercq,
Les pontifes de Vancienne Rome, p. 196.
3 The extant Leges Regiae are to be found in Bruns, F antes juris Romani
I. 1.
THE LEGES REGIAE xv
which had been collected in the early days of the Kepublic by a
Pontiff named Papirius '. It was held that they had been publicly
exhibited in Koine, and were restored, like the Twelve Tables, after
the burning of Kome by the Gauls (390 B. c) 2. At the end of the
Republic the compilation was edited, perhaps to some extent revised,
by a scholar named Granius Flaccus, who is believed to have been
a contemporary of Caesar3 ; but there is no reason for supposing
that riaccus introduced any essential alteration in the tenor of the
ordinances. These ordinances, in the form in which they have been
preserved to us, bear the strongest internal marks of their genuine-
ness. Some of the provisions which they contain are quite pre-
historic and could never have been valid at any period of the history
of the Republic. Others deal with purely religious observances,
which may belong to any date, but may be as early as the city of
Rome itself. The Royal Laws, in fact, contain a series of ordinances,
dealing with social, moral and religious life, such as may have been
issued over a long period of time by the College of Pontiffs. It is
not likely that all of these rules really go back to the epoch of the
Kings ; but many of them must do so, for they reflect an extremely
primitive stage of culture and religious belief. In fact, one of the
most surprising features of the Royal I^aws is their lack of signi-
ficance for the ordinary current of Roman life, as it was lived in the
historical period. Where they are not a dead letter, they refer only
to slight and exceptional contingencies, to the bare outline of the
political life of the State and to the faintly denned structure of its
hierarchical organization ; whereas the Law of the Twelve Tables is
a great living force, which pervades the whole of Roman business
life. The Royal Laws reflect on the whole the rule of Fas ; the
Twelve Tables almost entirely the rule of Jus. A comparison of
the former compilation with the latter code, in regard to their re-
spective influences, exhibits more effectively than any other evidence
could do the triumph of secular over religious law even in the early
period of the Republic.
§ 5. Jus — Its different forms as exhibited in Procedure.
The counterpart to the rule of Fas is the rule of Jus. .Jus seems
originally to have meant ' That which is fitting ' 4, and the word
1 Dionys. iii. 36; Pompon, in Dig. 1. 2. 2. 36. 2 Liv. vi. 1.
3 Paulus in Dig. 50. 16. 144 ; Censorinus, De Die Nat. iii. 2.
4 Clark, Practical Jurisprudence, p. 17. Nettleship (Contributions to Latin Lexico-
graphy, p. 497) enumerates the following senses of jus in Latin literature : —
(1) a law court (e.g. in the phrases 'In jus ducere,' ' Res est in jure'),
(2) a bond or tie (e.g. in the phrases 'Jus amicitiae,' 'Jura necessitudinis'),
(3) power, authority, (4) right to do a thing, (5) law, or a system of law,
(6) what is right and fair, (7) the plural jura means either (a) rights or (b) rules
of law, ordinances, decisions, and so authority.
xvi HISTORICAL INTRODUCTION
never necessarily conveys the implication, contained in the word
Law, that the thing it describes is the result of enactment by a
Sovereign. It conveys rather the idea of valid custom, to which
any citizen can appeal, and which is recognized, and can be enforced
by, a human authority. Jus is a nugatory thing, a vain abstraction,
until it can be realized ; it is a thing recognized only in practice ;
and so indissolubly were the ideas of Eight and Satisfaction con-
nected with one another in the minds of the Romans that they used
the same word ' Jus ' for Right and for Court l. This association of
ideas gives us the clue to the fact that the only possible method
of distinguishing between the different kinds of Jus is by appealing
to Procedure. In early societies, where there is no science of Juris-
prudence, the only way in which the distinctions between different
kinds of law — public and private, civil and criminal — can be exhibited,
is by pointing to the fact that different kinds of mechanism have
been created for satisfying different kinds of claims. Thus the
characteristics of private law are those of a civil suit. Here the
action can be brought only by the injured party or his representative,
the satisfaction recovered belongs to the injured party, the Court
which gives the satisfaction is composed of some arbitrator or judge
(arbiter or judex) chosen by the consent of the parties, but approved
by the judicial magistrate who represents the State. Criminal Law
may similarly be denned in terms of Criminal Procedure. Here the
wrong done is regarded as inflicted, not merely on the individual
injured, but through him on the State. The State, therefore, will
not depend on the initiative of the injured individual to undertake
the prosecution. It can either be taken up by any citizen, or is
regarded as the peculiar duty of a magistrate. The magistrate is
often both prosecutor and judge. The defendant has no voice in
the selection of the Court. The Court consisted, in the earlier pro-
cedure at Rome which never became wholly extinct during the
Republic, of a magistrate representing the State, or of the State
itself in the form of the Sovereign Assembly of the People; at a
later period, of a select body of Judices with a President (Quaesitor),
both Judges and President being created by statute. The satisfaction
recovered from the defendant in such a trial, if it takes the form of
a fine, belongs not to the aggrieved individual but to the State ; if
it assumes the form of punishment which is not pecuniary, such
punishment is inflicted by the State. The third class of occasions
on which the State intervenes to correct a wrong or to chasten an
individual, is that governed by the rules of Administrative Law2.
The procedure springing from this Law has analogies both to civil
1 See note 4, p. xv.
2 On this branch of Public Law see Mommsen, Staatsr. i, p. 172.
THE DIFFERENT FORMS OF JUS xvii
and to criminal jurisdiction. Administrative jurisdiction has as its
object either the enforcement of a personal service to the State on
an individual, or the exaction of a debt which he owes to the State.
The obligation to service is generally enforced by a fine imposed by
the magistrate. But whether what is demanded by the State takes
the form of personal service or a pecuniary debt, the characteristic of
Administrative jurisdiction at an early period of Roman History is
that the magistrate who represents the State has a double character.
He is not only prosecutor or plaintiff but also judge. This principle,
however, was eventually modified. If the fine imposed exceeded
a certain limit, an appeal to the People was allowed l ; and, later
still, the penalty might be sought either by a magistrate or a
common informer before a civil court \ When a debt to the State
was the object of dispute, the custom may eventually have been
established that the magistrate should not himself judge, but should
appoint for this purpose a panel of those assessors of debts or
damages who were known as Recuperatores 2.
The question as to what particular cases shall fall under each of
these three heads of Civil, Criminal and Administrative Law is one
that is answered differently by different political societies ; and Rome
herself gave different replies to this question at various periods of
her history. But we know of no period in the life of Rome when
the distinction between these three types of Law and Procedure was
not clearly grasped, and expressed by the higher judicial authorities,
who were at Rome in a very real sense the makers of law.
§ 6. The ultimate sources of Jus — The Monarchy and
the Early Republic.
The problem of the ultimate source and sanction of Jus was not
one that troubled the Roman to any appreciable degree at any period
of history. He was content to regard it as the product of Custom
assisted by Interpretation. At a later period he supplemented it by
acts of Legislation ; but, even when he did 'so, he was much less
concerned with the words of the enactment than with the manner
in which these words were interpreted. Scarcely any people has
had less of a gift, or natural inclination for, scientific legislation or
the formation of a Code. The Roman's dependence on authority and
skilled interpretation was, therefore, great ; and this authority and
power of interpretation are believed to have been represented, in the
1 This procedure is illustrated by the Lex Bantina (Bruns, Fontes, iii. 9). It
is there ordained ' Earn pequniam quei volet magistratus exsigito. Sei postulabit
quei petet, pr(aetor) recuperatores . . . dato . . . facitoque joudicetur.'
3 Compare the procedure ordained by the Lex agraria of 111 B.C. (Bruns,
Fontes, iii. 11), II. 36-39.
xviii HISTORICAL INTRODUCTION
earliest times, by the King and the College of Pontifices. Justice could
only be obtained by a litigant who knew the formularies of action,
precise verbal accuracy in which was necessary for the successful
conduct of a suit l. But this knowledge could be obtained only from
the King and his Pontiffs. The King, too, must have given the ruling
in law which determined what form of action should be employed 2.
Even at this early period the private Judex or Arbiter may often
have been used for the final settlement of a suit 3 ; but the King must
have assisted in his appointment ; and his judgment must have
been conditioned by the preceding form of action which the King
and the Pontiffs had thought appropriate to the suit.
The change from Monarchy to Kepublic could have made little
difference in the manner in which the law was revealed to the
Eoman litigant, except in so far as this change may have increased
the power of the College of Pontiffs. The annual tenure of the
consulship, and the fact that each occupant of this office was
hampered by a colleague, prevented the new magistracy, which was
supposed to give the forms of Jus, from exercising over its skilled
advisers the authority which had been once wielded by the King ;
and the patrician aristocracy, each member of which might be a
consul or a pontiff, must now have attained a solidarity which it had
never known before. The tendency of this aristocracy was to close
up its ranks and to assert a monopoly, not only of office, but of
knowledge of the forms of law.
§ 7. Patricians and Plebeians.
Had Eome been a homogeneous community, there would perhaps
have been no agitation for the revelation of the principles of law
which underlay the forms of procedure, and there would therefore
have been no tendency towards an early codification. But Kome
was composed of two communes, not of one. There was a Plebs
within the Populus ; and this Plebs possessed a solidarity which
gave it the means of lifting up its voice in a demand, not for power,
but for the protection of legal rights, and for the knowledge which
was essential to that protection. The origin of the Plebs is wholly
unknown. The favourite assertion of modern writers, that the
Plebeians were a class which had emerged from a condition of client-
ship to the Patricians, does very little to solve the problem of the
origin of the former class, except in so far as it suggests that some of
the Plebeians were inhabitants of conquered cities that had been
deported to Kome, and that others were voluntary sojourners from
1 Gains, iv. 11. » Cic. de Rep. v. 2, 3.
3 Savigny, System des rom. Rechts, vi. p. 287 ; BernhOft, Stoat und Recht der
Kbnigszeit, p. 230.
PATRICIANS AND PLEBEIANS six
distant cities who were protected by the government and the
patrician clans. But it seems impossible that causes such as these
could have led to the creation of a mass of men that appears in early
Eoman history as forming the bulk of the community ; and it is
possible that further evidence (archaeological and ethnological) may
show that the distinction between Patricians and Plebeians is one
based on race, and that the existence of the Patricians as a governing
class is the result of the conquest of a native race by bands of im-
migrant wanderers1. Throughout Koman law there is a curious
persistence of dual forms for the attainment of the same end which
may be a survival of two distinct systems of customary law possessed
by different peoples, the conquerors and the conquered. Thus we
have the Sponsio side by side with the Nexum, marriage by Con-
farreatio side by side with marriage by Usus or Coemptio, the
testament in the Comitia Calata side by side with the testament ' per
aes et libram.' The procedure ' by the copper and the scales,' in
the manifold forms which it assumes, seems to be especially a
characteristic of the popular law of the commons. The exclusion of
the Plebeians from the magistracy and the priesthood, and the denial
to them of the right of Conubium with Patricians, may also point
in the direction of a fundamental racial distinction between the two
classes. But the disabilities consequent on this racial distinction,
if we suppose it to have existed, were by no means limited to the
domain of public rights. They pervaded the whole of Koman life to
such an extent that there is considerable justification for the view
that the early condition of the Plebeian was very like that of the
client. In the first place, the Patricians maintained that they alone
formed Gentes, and the condition of being a member of a Gens, or
Gentilis, was that the man who made the claim should be able to
point to a perfectly free ancestry 2. In this claim of the Patricians
we therefore have the implication that the ancestors of the Plebeians
were not free. In all respects but this, the Plebeians formed Clans
just like the Patricians. A group of Plebeians who bore a common
name formed a Stirps, but this Stirps was supposed to be a mere
offshoot of some patrician Gens on which it was held to be de-
pendent. It possessed no independent rights of its own. A group
of Plebeians who could trace their ancestry back to a common
1 Compare Ridgeway, The early age of Greece, p. 257. ' We may conclude that
the two main elements in the population of. early Rome were the aboriginal
Ligurians, who formed the Plebs, and the Umbrian Sabines, who formed the
aristocracy.' The evidence is perhaps not sufficient to warrant so definite
a conclusion ; but the more that I have dwelt on the lack of homogeneity in
early Roman life, the more definite has become my conviction that we have to
deal with racial, not merely with social, differences.
3 l Gentiles sunt . . . quorum majorum nemo servitutem servivit ' (Cic. Top.
6. 29).
xx HISTOEICAL INTRODUCTION
head were called Agnati ; but these Agnati had not the rights of
inheritance, or perhaps the other family rights, possessed by the
Gentiles. The rights of plebeian Agnati were recognized by the
Twelve Tables ; but this was perhaps the first recognition that they
gained. In the second place, of the two rights which were sub-
sequently considered as forming the minimum conditions of citizen-
ship, the Jus Conubii was, we know, not possessed at all by Plebeians,
and it is probable that they possessed the Jus Commercii in a very
imperfect form. We cannot, it is true, point to a time when no
Plebeian could conclude a contract, or bring an action, unless, like
a client, he acted through a patron. • But it is probable that in early
times he had a very limited capacity for controlling land ; that he
held the ground, which he worked for himself, merely on sufferance
(Precario), and not in virtue of his civic right (ex Jure Quiritium) ].
This seems proved by the fact that he was not originally liable to
service in the legions 2 : for there can be little doubt that such
service was a burden imposed on landowners 3. It seems that the
one great condition which led to the rise of the Plebeians as a
r power in the State was the recognition of their rights as independent
holders of land. This recognition was accorded because their ser-
vices were required as soldiers in the legions and as tax-payers.
They could now hold and dispose of Kes Mancipi ; that is, those
kinds of property which were assessed at the Census (Kes Censui
Censendo) 4 and which, as being liable to such assessment, required
peculiar methods of transfer as evidence of ownership. This change
must have preceded or accompanied the great epoch of reform which
is associated with the name of Servius Tullius.
§ 8. Acquisition of voting rights by Plebeians — Assemblies
of the Populus and of the Plebs.
When the army was made the basis of the new Comitia Centuriata,
the wealthier Plebeians who were members of the army gained a
vote ; and the Comitia Curiata, originally patrician, must soon have
come to admit members of the Plebs. But this voting power did
little good to the class as a whole. Its true strength lay in its
military organization. The first secession was an incident in a
campaign ; and it is not surprising that the officers whom the
Plebeians appointed to protect their persons against the patrician
1 Cf. Savigny, Recht des Besitees (seventh edition), p. 202.
a If we believe that the Servian census was intended to create liability to
service for Plebeians. Cf. p. xxv.
3 This seems shown by the continuance of the use of the word assidui for the
members of the Servian Classes.
1 Cic. pro Flacco, 32. 80.
THE TWELVE TABLES xxi
magistrates, bore the military name of Tribuni. The creation of the
Tribunate gave the Plebs a political organization, and was the
starting-point of that dualism which runs through the whole of the
Eoman constitution — a dualism expressed in the distinction between
the Comitia of the People and the Concilium of the Plebs, between
Lex and Plebiscitum, between Magistratus Populi and Magistratus
Plebis, between the Imperium of the one and the Sacrosanctitas of
the other. The tribunes, however, could offer only personal assistance
to outraged individuals, and though they proved a potent channel
for the petitions of the Plebs as a whole, they were a very ineffective
means of protecting the private rights of individual members of this
order. Effective protection was in any case impossible until a fuller
light had been thrown on the question what the rights to be pro-
tected actually were. Hence the demand for the publication of the
principles of the law on which the jurisdiction of the patrician
magistrates was based.
§ 9. Unification of the Law by means of the Tivelve Tables.
The story of the creation of the Decemvirate and the formation of
the Code of the Twelve Tables, which has come down to us in a
highly picturesque and legendary shape, presents us with the picture,
fir.st of a prolonged agitation of ten years (462-452 B. c.) maintained
by the tribunes of the Plebs, then of a commission sent to gain
knowledge of Hellenic codes, next of the appointment of two
successive boards of Decemvirs for the years 451, 450 B. c., and
finally of the ratification of the Code by the Comitia Centuriata and
of its publication, in its completed form, by the consuls of 448 B. c. 1
The Greek influence on the Code 2, although slight, is undeniable,
because it was unavoidable. It may not have been gathered, in the
way affirmed by tradition, by the appointment of a commission to
inspect the systems of law of different Hellenic states ; but it was,
at the least, an inevitable result of the prolonged influence of the
civilization of Magna Graecia 3, to which Eome had been .subject
from the days of her infancy — an influence which successively
moulded her army, her coinage, her commerce and her literature.
Again no State, however self-centred, could dream of undertaking
such an enterprise as a written system of law without glancing at
similar work which had already been accomplished by neighbouring
cities. But, in spite of the fact that some of its outline and a few of
1 Liv. iii. 57.
2 See Pais, Storia di Roma, i. 1, p. 584. He describes the law of the Tables as
the result of a fusion of the rude national law with the more civilized dispositions
of Greek culture.
3 Cf. Voigt, XII Tafeln, i, p. 14.
xxii HISTORICAL INTRODUCTION
its ideas may have been borrowed from Greek sources, the Law of
the Twelve Tables is thoroughly Roman both in expression and in
matter. The form of expression is, it is true, not that of later
Roman legislation — complicated, technical, obscure. Had it been so,
the Twelve Tables could scarcely have survived. It was the form
that was current in the verbal juristic maxims of this and a later
period — brief, gnomic, rhythmic and imperative \ As to the matter,
that was conditioned by the task which the Decemvirs had to
perform — a task which they accomplished with an astonishing
degree of success. Their object was to make a common law for
i Roman society considered as a whole. It was no business of theirs
to abolish patrician privileges or to remove the peculiarities of
patrician ceremonial ; but they had to find a system of Jus which
would be equally valid for all Romans ; and this they naturally
found in the customary law of the mass of the people ; that is, of the
Plebs. They were forced to recognize a social disability of the Plebs,
as exemplified in the absence of Conubium with Patricians 2 ; for to
remove it would have been an alteration of the Constitution as well
as an infringement of patrician rights. But how completely they
ignored the existence of the Plebs as a separate political community
is shown by the fact that the tribunes do not seem to have been
mentioned in the law at all. The assumption probably was that the
publication of the Code should render the Tribunate unnecessary ;
and this it might have done, had the patrician government lived up
to its promises.
The law of the Twelve Tables, as the ' body of the whole of
Roman law ' (' corpus omnis Romani juris ') and the ' fountain of all
public and private law' (' fons omnis publici privatique juris') —
designations both of which are applied to it by Livy3 — contained
ordinances on all the three branches of Jus, civil, criminal and con-
stitutional. In the matter of civil law, we find regulations as to
marriage and family relations, inheritance, testamentary disposition,
debt and usury. The marriage recognized was that known as the
result of usus— a contract, that is, which was concluded by consent
and strengthened by prescription 4. It was ordained that the three-
fold sale of a son by his father should issue in the freedom of the
son 5 : although whether the Twelve Tables made this form of
emancipation the basis of adoption is uncertain. The manumission
of slaves who had been left free by testament, on the condition of
purchasing their freedom, was also facilitated6. Recognition was
1 Cf. Diod. xii. 26 j^ S« ypcujxtffa voiMOtaia, $pa\eais teal airepirTois
Siffifive 6av/j.a£o(ifV7) fiexpt ruiv naff Jjfuas naipSiv.
a Cic. de Rep. ii. 37, 63. * Liv. iii. 34.
* Gaius, L 111. s Gaius, i. 132. ' Ulpian, Reg. ii. 4.
THE TWELVE TABLES xxiii
given to testamentary disposition as performed ' per aes et libram ' l •
while, in the matters of intestate inheritance and guardianship, the
rights of the Agnati, common to Plebeians and Patricians, were
regarded as prior to those of the Gentiles 2. The harsh law of debt,
which was a result at once of freedom of contract and of the very
severe view which ancient societies take of the defaulting debtor,
was maintained ; the Judicatus still became the bondsman of his
creditor3, but now (perhaps for the first time), all the stages of the
process of execution were published to the world, the rights of the
creditor were defined, the chances of escape open to the debtor were
accurately described. Loans on interest were permitted ; but the
maximum rate of interest was fixed at ' unciarium foenus ' 4 (probably
ten per cent.) ; and the usurer who exceeded this rate was punished
more severely than the ordinary thief ; he was compelled to restore
fourfold 5. With respect to Civil Procedure (the exclusive knowledge
of which had been one of the greatest elements of strength in the
patrician government) it is clear that the outlines of the process —
such as the rules for the summons of parties and witnesses, and for
the length of the trial 6 — were described. But it is very questionable
whether the Tables went so far as to specify the Forms of Action ;
the actual words and gestures, that is, which had to be employed
in any given case. We find a tradition that these forms were not
revealed until nearly 150 years later, and that they were first given
to the world in 304 B. c. by a certain Cnaeus Flavius7, a freedman's
son and the clerk of Appius Claudius, the censor of 312 B.C., who
was apparently also pontiff. But the traditions connected with the
publication at Rome, even of the simplest information about Pro-
cedure, are exceedingly obscure. On the one hand, we hear that
this same Cnaeus Flavius published a Calendar which gave a record
of Court Days (Dies Fasti) 8 ; on the other hand, it was believed that
a Calendar of some kind had been already published by the
Decemvirs9. It is possible that the decemviral Calendar had
become antiquated, or that it had not been restored or republished
after the burning of Rome by the Gauls (390 B. c.) 10 ; but it is clear
that the Romans of Cicero's time had much vaguer ideas about the
epoch at which the forms of Procedure were made accessible to the
public, than they had about the date at which the principles of
Substantive Law were given to the world.
Cic. de Inv. ii. 50. 148 ; [Cic.] ad Her. i. 13. 23 ; Gaius, ii. 224.
Ulpian in Collatio, 16. 4.2. 3 Gell. xv. 13. 11 ; xx. 1. 45.
Tac. Ann. vi. 16. 6 Cato, de Re Rust, praef.
Brims, Fontes, i. 2, Tab. i.
Cic. de Or. i. 41. 185 ; ad Att. vi. 1. 8 ; Liv. ix. 46. 5.
8 Cic. ad Alt. I.e. ; pro Mur. 11. 25 ; Liv. I.e. ; Plin. H.N. xxxiii. 1. 17.
9 Macrob. i. 13. 21. lu Liv. vi. 1 ; Cic. ad Att. I. c.
xxiv HISTORICAL INTRODUCTION
The criminal law of the Twelve Tables reflects a more primitive
stage of thought than its civil ordinances. But this is not sur-
prising ; for, throughout the whole of Eoman History, the criminal
law lags far behind the civil. The Tables recognize the principles
of self-help and retaliation. A limb is to be given for a limb ; but for
minor assaults pecuniary compensation is allowed \ We still find
the idea of capital punishment taking the form of an expiation to an
outraged deity ; thus the man who destroyed standing corn by night
was hanged as an offering to Ceres 2. The belief in witchcraft still
survives ; for death is the penalty for incantations 3. It is also the
penalty on the judex who has taken bribes, and for treason
(Perduellio) in the form of ' rousing an enemy against the State or
handing over a citizen to the enemy4.'
But it is where criminal law touches questions of personal liberty,
and is connected with constitutional law, that the legislation of the
Twelve Tables is most advanced. The principle of the Appeal to the
People (Provocatio) against the sentence of the magistrate was
maintained 5 ; it was enacted that no law or sentence should be
passed to the detriment of an individual (Privilegia ne inroganto)6 ;
and it was laid down that no capital sentence could be issued except
by ' the greatest of the Comitia ' (nisi per maximum comitiatum) 7 ;
that is, by the Assembly of the Centuries, or Exercitus, gathered in
the Campus Martius.
An important aspect of the Public Law of the Twelve Tables is
the guarantee of the right of free association, provided that it have no
illegal intent. While nocturnal gatherings (coetus nocturni) are
prohibited 8, the formation of gilds (collegia) is encouraged. Such
gilds were to require no special permit for their existence, and the
rules which they framed for their own government were to be valid,
provided that these rules were no infringement of public law 9.
Lastly, the most typical and important utterance of the Tables is
to be found in the injunction that ' the last command of the People
should be final 10.' It is an utterance which shows how little the
Decemvirs regarded their own work as final, how little they were
affected by the Greek idea of the unalterability of a Code, of a Code
forming a perpetual background of a Constitution — in fact, by the
idea of a fixed or written Constitution at all. It is an utterance that
expresses the belief that law is essentially a matter of growth, and
Gell. xx. 1. 12-14. 2 Plin. H.N. xviii. 3. 12. 3 Cic. de Rep. iv. 10. 12.
Marcian in Dig. 48. 4. 3. 5 Cic. de Rep. ii. 31. 54.
Cic. de Leg. iii. 4. 11. 7 Cic. de Leg. I. c.
Seel, in Catil. 19. 9 Gaius in Dig. 47. 22. 4.
0 ' Ut quodcumque postremum populus jussisset, id jus ratumque esset ' (Liv.
vii. 17).
THE LEGISLATIVE ASSEMBLIES xxv
prepares us for the fact that Eome saw no further scheme of suc-
cessful codification until nearly a thousand years had passed.
§ 10. Future Progress of Law. Legislation and Interpre-
tation; the Legislative Assemblies.
For the future the progress of law was to depend on the two
processes of legislation and interpretation. The legislative assemblies
were those of the Populus and the Plebs. The Populus, which
comprised the whole of the Koman people, Patricians as well as
Plebeians, met, either by centuries, as the Comitia Centuriata, or
by tribes, as the Comitia Tributa, under the presidency of a Consul
or Praetor.
The Comitia Centuriata was an assembly that had grown out of the
army-organization of the whole Eoman people. It was the whole
Host or Exercitus expressing its political will. It was for this
reason that the military unit (the centuria) was the voting unit.
And this was also the original reason why we find in this assembly
the division into classes, or aggregates of citizens grouped together
on the basis of a particular property qualification ; for the different
types of military service were originally determined by degrees of
wealth. But the element of wealth in this assembly, which is
exhibited by the division into classes, soon gained a political
significance. The voting power of the classes differed considerably.
That of the wealthy was greater than that of the middle-class,
and that of the middle-class far in excess of that of the poor. Thus
the Comitia Centuriata was always assumed to have something of an
aristocratic character ; and the change which its constitution under-
went during the Kepublic was at least partly directed by an effort to
modify this character. The scheme recognized five classes, the
census of each being (in terms of the later assessment of the
historical period) respectively 100,000, 75,000, 50,000, 25,000, and
11,000 (or 12,500) asses. The first class contained eighty centuries,
the second, third, and fourth, twenty each ; the fifth, thirty. Thus the
centuries of the first-class were almost equal to those of the four other
classes put together. The weight of aristocratic influence may be
still more fully realized if we remember that the corps of Koman
Knights (centuriae equitum equo publico) formed eighteen centuries
in this assembly, and that the mass of citizens whose property fell
below the minimum census were grouped in a single century. The
collective vote of the first class and the knights was represented by
ninety-eight centuries ; the collective vote of the whole of the rest of
the community (including four or five centuries of certain professional
corporations connected with the army, such as the Fabri) was
xxvi HISTORICAL INTRODUCTION
represented by ninety-five or ninety-six centuries \ Thus the upper
classes in the community possessed more than half the votes in this
assembly.
A modification in the structure of the Comitia Centuriata was
subsequently effected, which had the result of giving a more equal
distribution of votes. No precise date can be assigned for the
change ; but it has been thought not to be earlier than 241 B. c.,
the year in which the number of the tribes was raised to thirty-five2.
The principle of the new arrangement was that the tribe was made
the basis of the voting power of the classes. There is considerable
divergence of opinion as to the method in which the centuries were
distributed over the tribes ; but, according to the more usually
accepted view which has been held by scholars from the seventeenth
century onwards 3, the five classes were distributed over all the
tribes in such a manner that there were two centuries of each class —
one century of Seniores and one of juniores — in a single tribe. Each
class would thus have two votes in each tribe and seventy votes in
all. The total number of centuries belonging to the five classes
would be 350, of which the first class would possess but seventy
1 The scheme was as follows : —
THE CAVALBT.
18 centuries, chosen from the richer classes (Dionys. iv. 18), but probably
with no fixed property qualification.
THE INFANTRY.
1st classis— 100,000 asses (Liv. i. 43, Dionys. iv. 16, Polyb. vi. 23) ; 120,000
asses (Plin. H. N. xxxiii. 3, Festus, p. 113).
Seniores, 40 centuries ) OQ
Juniores, 40 centuries (
2nd classis — 75,000 asses (Livy and Dionysius).
Seniores, 10 centuries ) OQ
Juniores, 10 centuries \
8rd classis — 50,000 asses (Livy and Dionysius).
Seniores, 10 centuries ) 20
Juniores, 10 centuries )
ith classis — 25,000 asses (Livy and Dionysius).
Seniores, 10 centuries ) ~0
Juniores, 10 centuries \
5th classis— 11,000 asses (Livy) ; 12,500 (12£ minae, Dionysius).
Seniores, 15 centuries ) ««
Juniores, 15 centuries \
Fabri— 2 centuries (voting with the 1st class, Livy ;\ 5 centuries (Livy).
with the 2nd class, Dionysius).
Accensi, cornicines, tibicines, 3 centuries, r 4 centuries (Dionysius).
Livy ; 2 centuries, Dionysius (voting
with the 4th class, Dionysius).
Capite censi or Proletarii, 1 century (Livy). 1 century.
Total 193 or 194 centuries.
3 Cf. Liv. i. 43. He describes the new organization as existing ' post expletas
quinque et triginta tribus.' Yet he does not say that it began its existence at
that date. Mommsen (Staatsrecht, iii, p. 270) conjecturally assigns the change to
the censorship of C. Flaminius (220 B.C.).
8 This system was first suggested by Pantagathus, who died in 1657.
THE LEGISLATIVE ASSEMBLIES xxvii
votes ; or, if we add the other centuries of knights (18), of corporate
bodies such as the Fabri (4), and of Proletarii (1), we find that the
first class and the knights commanded but eighty-eight votes out of
a total of 373 1. This system, which lessened the influence of the
wealthier classes, was temporarily abolished by Sulla in 88 B.C.2;
but it was soon restored, and there is every reason to suppose that it
survived the Republic and formed the basis of the arrangement of the
Comitia Centuriata under the Principate3. Although the Comitia
was organized on this tribal basis for the distribution of voting power,
the voting unit was still the century and not the tribe. The seventy
centuries of each class voted in turn ; the decision of each century
was determined by the majority of the votes of its individual
members ; and the majority of the centuries determined the decision
of the assembly.
The Comitia Centuriata, although of the utmost importance in the
structure of the* Roman Constitution as the body that elected the
magistrates with Imperium and the censors, that exercised capital
jurisdiction and declared war, ceased to be employed in the period of
the developed Republic as an ordinary legislative assembly. It was
difficult to summon and unwieldy in its structure, and its position
as a legislative body came to be usurped by the two assemblies of the
tribes. Yet, as we shall see *, it may have been held that legislative
acts, which affected the fundamental principles of the Constitution,
should be submitted to the centuries.
The Comitia Tributa Populi had probably been instituted in
imitation of the Plebeian Assembly of the Tribes. It was found
convenient that the Populus should meet in this way as well as the
Plebs ; and the Tribus — the voting unit which had already been
employed for assemblies of the Plebs — was used for assemblies of
the whole people. The Tribus was always a division of the territory
of the Roman State in Italy, and the tribes grew in number as this
territory increased until by the year 241 B.C. they had reached their
final total of thirty-five. It is generally believed that originally only
holders of land were registered as members of a tribe 5 ; but there is
1 Mommsen's system (Staatsr. iii, p. 275) is different, and is based on the view
that the description given by Cicero (de Rep. ii. 22. 39, 40) refers, not to the older
arrangement, but to the reformed Comitia. Mommsen allows the 70 votes for
the 70 centuries of the first class, but thinks that the 280 centuries of the other
classes were combined so as to form only 100 votes. The total votes in the
Comitia would thus be 70 + 100 + 5 (Fabri, &c.) + 18 (Knights); i.e. 193 in all, as
in the earlier arrangement.
2 App. Bell. Civ. i. 59.
3 This Comitia seems still to have met for formal business as late as the third
century A.D. At least Dio Cassius (Consul 219 or 220 A.D.) describes the flying
of the flag from the Janiculum as a custom still surviving in his day (xxxvii. 28).
4 P. xxix.
' This was tke view taken by Mommsen (Staatsr. iii, pp. 182, 184). He held
C 2
xxviii HISTORICAL INTRODUCTION
no sufficient evidence for this view, and it seems safer to conclude
that, while every holder of land was registered in the tribe in which
his allotment lay, every landless man was registered in the tribe in
which he had his domicile. At a later period registration became
more arbitrary, and had little or nothing to do with the residence of
the person registered. The censor enrolled individuals in tribes at
his pleasure ; usually he entered a man in the tribe to which his
father had belonged ; but he might, if he willed, transfer him from
one tribe to another (tr-ibu movere).
In an assembly organized by tribes (tributim) the vote of the
majority of the members of a particular tribe determined the decision
of that tribe, and the vote of a majority of the tribes the decision of
the assembly. The Comitia Tributa Populi must have been
instituted later than 471 B. c., which is the traditional date at which
the Plebs began to meet by tribes J ; and it may have been in existence
some twenty years later, at the date of the formation of the Twelve
Tables 2. The first evidence for it as a legislative assembly belongs
to the year 357 B. c. s. In the later Republican period it was
probably quite the most active of the legislative assemblies of the
whole people.
The Comitia Curiata, the oldest of all the Roman assemblies,
whose structure was based on the ancient Curiae or Parishes of
Rome, ceased in the historical period to be a true legislative assembly.
It met only for the performance of certain formal acts, such as the
lex curiata which ratified the Imperium of the higher and the Potestas
of the lower magistrates 4. For this purpose the thirty Curiae were
in Cicero's day often represented by but thirty lictors 5. The
assembly may have been as scantily attended when it performed the
formal acts vested in it when it met as the Comitia Calata 6. In this
(ii, p. 403) that Appius Claudius, the censor of 312 B.C., first included the
landless citizens in the tribes (cf. Girard, Manuel, p. 31) ; but our authorities
(Diod. xx. 46, Liv. ix. 46) only represent Appius Claudius as allowing citizens
to be registered where they pleased, and as spreading the lower classes (humiles)
over all the tribes. The definition which we possess of the Comitia Tributa
(Laelius Felix ap. Gell. xv. 27) speaks of it only as an assembly at which the
votes are given ' ex regionibus et locis.'
1 Liv. ii. 56. Previously it had probably met by Curiae. Hence the tradition
that the early tribunes were elected in the Comitia Curiata (Liv. I. c., Cic. ap.
Ascon. fn Cornelian, p. 76).
3 When the Tables enacted ' De capite civis nisi per maximum comitiatum
. . . ne ferunto ' (Cic. de Leg. iii. 4. 11), this mention of the 'greatest Comitia'
(i. e. the Comitia Centuriata) seems to imply the existence of a lesser Comitia
with judicial powers ; and the latter could scarcely have been the Comitia
Curiata of the period.
3 Liv. vii. 16.
4 For the application of the lex curiata to the minor magistracies, as well as
to those with Imperium, see Messala ap. Gell. xiii. 15. 4 ' Minoribus creatis
magistratibus tributis comitiis magistratus, sed Justus curiata datur lege.'
6 Cic. de Leg. Agr. ii. 12. 31. 6 Gaius, ii. 101 ; Gell. xv. 27.
THE CONCILIUM PLEBIS xxix
capacity it was gathered under the presidency of the Pontifex
Maximus for the inauguration of the Eex Sacrorum and the
Flamines, and for the Detestatio Sacrorum — the renunciation of pre-
existing religious obligations which was made by a man who passed
from his Gens, either by an act of Adrogatio or by transition from
the patrician to the plebeian order \
The assembly of the Plebs 2 excluded the patrician members of the
community, and continued to be organized by tribes. Its true
designation was Concilium Plebis, Concilium differing from Comitia
as a gathering of a part of the people differs from a gathering of the
whole 3. This assembly -is often spoken of by ancient writers as the
Comitia Tributa ; but it differed from the Comitia Tributa Populi in
two respects. It did not include Patricians, and it was presided over,
not by a magistrate of the People, but by a magistrate of the Plebs.
When it met for legislative purposes, it was presided over only by
the Tribune of the Plebs. The legislative authority of the Concilium
Plebis had developed steadily during the first two centuries of the
Republic. At first this assembly could only pass ordinances binding
on the members of the Plebs themselves. Then, by the Valeric-
Horatian and Publilian laws (449 and 339 B.C.) it gained the right of
considering and initiating proposals which affected the interests of
the whole community ; this right being probably acquired and
exercised by the creation of increasing facilities for bringing
resolutions of the Plebs as petitions to the assemblies of the people,
to be confirmed or rejected by the latter4. Since the Plebs came
gradually to constitute the majority of voters in the assemblies of
the people, these petitions must as time went on have been almost
invariably confirmed. The distinction between Plebiscite and Leges
must have been growing more and more formal and unreal when
the LexHortensia(287 B. c.) enacted that henceforth Plebiscita should
have the force of Leges5. From this time onwards there was no
difference between the Populus and the Plebs in matters of legislation,
except that it may have been held by some thinkers that fundamental
changes in the Constitution, such as those introduced by Sulla, ought
1 Gell. I c. * P. xxi.
3 Laelius Felix ap. Gell. xv. 27 ' Is qui non [ut] universum populum, sed
partem aliquam adesse jubet, non " comitia," sed "concilium" edicere debet.'
See Mommsen, Staatsr. in, p. 149.
4 Strachan-Davidson, starting from the view that Plebiscita were originally
sent as petitions to the consuls and senate (cf. Dionys. x. 31), suggests that the
Valerio Horatian law may have ' laid down that the consul must so consult the
senate, or it may even have forbidden him arbitrarily to disregard a recom-
mendation of the senate (should such be obtained) that he should put the
question to the populus' ; and that the Publilian law ' may have struck out the
intervening consultation of the senate, and may have required the consul to
bring the petition of the plebs at once before the populus ' (Smith, Diet, of Antiq.
ii, p. 439). s Gaius, i. 3 ; Pompon, in Dig. 1. 2. 2. 8.
xxx HISTORICAL INTRODUCTION
to be ratified by the Comitia Centuriata1. But in nearly all the
spheres subject to the commands of the people, the Populus and the
Plebs were equally competent ; a Lex could repeal a Plebiscitum and
a Plebiscitum a Lex *. This dual sovereignty, which is one of the
most curious of the theoretical features of the Koman Constitution,
was rendered possible and harmless by the fact that the mass of the
voters in all the different assemblies were composed of the same
individuals, and by the central control exercised by the Senate over
all magistrates, and therefore over all assemblies before which these
magistrates introduced their proposals. The initiation of legislation
was, in fact, during the days of Eepublican stability, in the hands of
the Senate ; but, apart from the exercise of this authority, which had
long had a de facto recognition, but was not recognized by law until
the time of Sulla (88 and 81 B. c.)3, the Senate did not pretend to
exercise legislative power during the Eepublic. In its own right
it could only exercise certain powers approximating to those of
legislation. We find it, for instance, fixing the rate of interest 4 ;
but such an ordinance technically assumed the form merely of
advice to the judicial magistrates as to the rates which they should
recognize in their edicts. The Senate, however, exercised the power
of dispensing individuals from the existing laws 5 ; and we find it
also warning the community that some enactment which had passed
the people was, on technical grounds, invalid, and was therefore not
binding either on the magistrates or on any member of the State 6.
In few societies of the ancient world was the legislative power
so unfettered as it was at Rome. The Romans drew no distinction
between constitutional law and other laws ; the Roman assemblies
could create new assemblies, could alter their own structure, could
modify or even suspend the Constitution by granting enormous
powers to individuals. There was no sphere of human interest
outside their control ; their power of utterance was limited only by
a respect for religious law7. We might, therefore, have expected
that legislation would have been the chief path on which Roman
law advanced to its maturity. But this expectation is disappointed,
so far as the progress of the Jus Privatum is concerned. We do
indeed find a certain number of statutes which deal with important
matters of private law, such as the Lex Aquilia de Damno, the Lex
1 We know, at least, that some of Sulla's legislation was effected through the
Comitia Centuriata (Cic. pro Dom. 30. 79).
Thus, Cicero was exiled by a Plebiscitum, but restored by a Lex Centuriata.
App. Bell. Civ. i. 59. * Cic. ad Att. v. 21. 13.
Ascon. in Cornelian, p. 58.
Cic. pro Domo, 16. 41 ; Ascon. in Cornelian, p. 68.
Hence the saving clause in enactments, ' Si quid sacri sancti est quod non
jure sit rogatum, ejus hac lege nihil rogatur ' (Probus). Cf. Cic. pro Caec. 33. 95.
INTERPRETATION BY THE MAGISTRATE xxxi
Furia on testaments, the Lex Voconia on inheritances ; and it is also
true that certain important changes in civil procedure were sanctioned
by the people, the most far-reaching of these changes sing perhaps
that effected by the Lex Aebutia, which helped to replace the Legis
Actio by the Formula l. But the legislation referring to private law
and civil procedure at Rome is in no way comparable in bulk to
that which dealt with criminal and constitutional law. Even those
Leges or Plebiscita that dealt with civil procedure, perhaps did little
more than ratify a change that had been already accomplished in the
courts, or carry this change a few steps further. And, as to the
alterations in the material elements of private law, these alterations
were determined to a far greater extent by interpretation than by
legislation.
§11. Law as the result of Interpretation. — Interpretation
by the Magistrate.
Interpretation at Rome assumed two forms. It was either the
work of the magistrate or the work of the jurisconsult. The
magistrate chiefly concerned with the interpretation of private law
was the Praetor. The office of Praetor is said to have originated
as a result of the Licinian laws of 367 B. c. 2 This new magistrate
was created for the purpose of performing most of the judicial
business of the Consuls, who, on account of the increasing complexity
of political life, were found incapable of conducting the whole of the
home and foreign affairs of Rome. For more than 120 years this
single magistrate administered civil justice to citizens and aliens.
At the close of this period (242 B.C.) a second Praetor was appointed3
whose duty it was to decide cases between aliens (Peregrini) and
between citizens and aliens. The former (Praetor qui inter cives jus
dicit) was known by the colloquial name of Praetor Urbanus ; the
latter (Praetor qui inter peregrinos jus dicit) was known by the
similarly abbreviated title of Praetor Peregrinus.
Every magistrate at Rome was in the habit of notifying to the
public the manner in which he meant to exercise his authority, or
any change which he comtemplated in existing regulations, by means
of a public notice (Edictum). In the case of magistrates who were
merely concerned with administrative work, such notices were often
occasional (edicta repentina) ; in the case of magistrates concerned
with judicial business, they were of necessity valid for the whole
period during which the magistrates held their office, and capable of
1 P. xl. a Liv. vi. 42.
3 Liv. Ep. 19. The date is not quite certain. Lydus (de Mag. i. 38) places the
event in 247 B. c. See Mommsen, Staatsr. ii, p. 196.
xxxii HISTORICAL INTRODUCTION
transmission to their successors (perpetua et tralaticia) ; for juris-
diction does not admit of occasional and isolated ordinances which
have only a temporary validity. The edicts of the Praetors were
necessarily of this latter type. Each new occupant of the office
might admit rulings not recognized by his predecessors ; these
rulings were forced on him by the fact that new and unexpected
combinations in legal relations had been presented to his notice, or
that the existing rules did not answer to a growing sense of equity.
New rulings cannot be introduced into a system of law without
affecting old ones. The fact that there was an edict gave the
Praetor a chance of smoothing out anomalies, instead of exhibiting
inconsistencies, in the law. The edict admitted of change and
development ; but it was a change that was subtle and gradual, not
violent and rapid. The process by which it was reached professed
to be a process of interpretation. It was really creative work of
a highly original kind.
The Edictum of the Praetor *, in the sense in which this word
is commonly used, is really a colloquial expression for the Album,
or great notice-board exhibited by the Praetor, which contained
other elements besides the Edicta in their true and proper sense.
It contained the Legis Actiones and the Formulae of the Civil Law
(Jus Civile) 2, probably preceded by certain explanatory headings, but
by no edict ; for the Praetor did not create the rulings on which
these civil actions and formulae were based. But it contained
as well the Formulae which were the creation of him and his pre-
decessors— the Formulae which were the product of what was known
as 'Magistrate's Law' (Jus Honorarium); and each of these Formulae
was no doubt preceded, at least eventually, by the Edictum or ruling
in law, which might have grown out of the Formula, but finally
served as its basis and justification. Thus the edictal part of the
Album was really a series of separate Edicta, each edict being
followed by its Formula ; it was regarded as being a supplement to
that portion which specified the Actions of Civil Law ; and it really
had this character of being a mere supplement in so far as 'honorary'
actions were seldom granted where a 'civil' action would have
sufficed. But its supplementary character was of a very far-reaching
kind. Thus the edicts might take cognizance of cases not provided
for by the civil law at all, they might replace the mechanism pro-
vided by the civil law for attaining a legal end, and they might alter
the character of the end itself. All these functions are summed up
by Papinian when he says that the work of the Jus Praetorium was
'to assist, to supplement, to correct the civil law for the sake of
1 See Wlassak, Edict und Klageform. 2 P. xl.
THE EDICTA PEKPETUA xxxiii
public utility1.' The edict of the Praetor Peregrinus was necessarily
still more of a substitute for the civil law than that of the Praetor
Urbanus. For, since the Legis Actiones could not (at least in many
cases) be employed by Peregrini 2, he was forced to invent equiva-
lents for these forms of action.
The third Edictum Perpetuum which was valid in Eome was
that of the Curule Aediles3. It was of no great content, since it
was concerned exclusively with the jurisdiction over the market, and
the control of public sites — a jurisdiction and control which were
possessed by these magistrates. For an edict in any way com-
parable to those of the Praetors we must turn to the provinces.
Here the governors (whether Proconsuls or Propraetors) issued
notices of their intentions with respect to jurisdiction, similar to
those of the Praetors at Eome as regards their permanent character
and the possibility of their transmission, but peculiarly applicable to
the particular governor's special sphere of administration. A special
edict was issued for each separate province (thus we read of an
Edictum Siciliense) * ; but this special character did not prevent
certain inter-relations between the edicts of separate provinces. We
know that the Provincial Edict might be prepared at Rome, before
the governor went to his province 5 ; and although the man who pre-
pared it (of course, with the assistance of professional lawyers), tried
to model his rules as closely as possible on those of his predecessor
in the province to which he was going, yet he might borrow im-
provements which had been initiated by the late governor of some
other province. Again, the same man might pass from one province
to another, and, much as the circumstances of the separate spheres
of government differed from one another, it is inconceivable that he
should not have carried some of his favourite rules of procedure with
him. A general conception of what a Provincial Edict should be
like, must have grown up ; the differences between the edicts being
probably those of matter rather than of form — the matter being
determined by the local customary law of the subject peoples, which
Eome rigidly respected. Where there were striking differences of
form, these must have been mainly due to the varieties of rights
granted by the Charters of the different provinces (Leges Pro-
vinciarum). It is obvious that, where much was granted by Charter,
little was left to the discretion of the governor. Where the Charter
granted only a few elementary rights, he had a much freer hand.
1 ' Adjuvandi vel supplendi vel corrigendi juris civilis gratia propter utilitatem
publicam ' (Papin. in Dig. 1. 1. 7. 1).
2 It has sometimes been thought that Peregrini were wholly excluded from
the use of the Legis Actio. See Girard, Manuel, p. 110.
3 Dig. 21. 1 ; Cic. de Off. iii. 17. 71 ; Gell. iv. 2.
4 Cic. in Verr. i. 45. 117. 5 Cic. ad Fam. iii. 8. 4.
xxxiv HISTORICAL INTRODUCTION
One important point in which the governor of a province differed
from a Praetor at Rome, was that he was an administrative as well
as a judicial official. Hence the Provincial Edict had to contain
a good many rules of administrative law which were not to be
found in its counterpart at Konie. This portion of the edict spoke
about the financial relations of the states of the province to the
Roman government and to its agents, and stated the rules which
regulated the relations of the tax-gatherers (Publicani) to the tax-
payers. The rest of the edict which took a definite shape, covered
the procedure which the governor promised to apply for the recovery
of certain rights by individuals — rights such as those entailed in in-
heritance or the seizure of a debtor's goods. These rules were based
on those of Roman law; but they were mere outlines capable of
adaptation to the local customs of the subject states. But there was,
at least in certain provinces, a portion of the edict, still dealing with
the rights of individuals, which assumed no definite shape. There
were points on which the governor did not care to frame rules until
he knew the emergencies which he would have to meet. He was
content (at least Cicero was, when governor of Cilicia) with pro-
mising that, in issuing decrees on such points, he would conform to
the principles of the urban edicts 1.
§ 12. The debts which this development of law owed to the
Italian and provincial world.
If we ask what was the great motive power which lay behind
this development of law through interpretation by the magistrate,
we shall find it to consist, partly in contact with foreign peoples ;
partly (although probably in a less degree) in the new educational
influences which were moulding the lives of the Roman nobles.
The tendency to experiment and adaptation, to a disbelief in any-
thing fixed and rigid, is thoroughly Roman ; but external circum-
stances were very largely responsible for the particular lines on
which this tendency was to move. The legal consequence of contact
with foreign races is summed up in the phrase Jus Gentium. The
word ' Gentes ' in this collocation means ' the world - ' ; and it is
possible that, when the expression Jus Gentium was first formed,
1 Cicero thus sketches the contents of the whole edict which he published as
governor of Cilicia (ad Att. vi. 1. 15) : — ' Unum (genus) est provinciale, in quo est
de rationibus civitatum, de aere alieno, de usura, de syngraphis ; in eodem omnia
de publicanis. Alterum, quod sine edicto satis commode transigi non potest, de
hereditatum possessionibus, de bonis possidendis vendendis, magistris faciendis :
quae ex edicto et postulari et fieri solent. Tertium, de reliquo jure dicundo
afpatpov reliqui. Dixi me de eo genere mea decreta ad edicta urbana
accommodaturum.'
2 Clark, Practical Jurisprudence, p. 354. On the content of the Jus Gentium see
Nettleship, Contributions to Latin Lexicography, p. 503 ; Mommsen, Staatsr. iii, p. 604.
THE JUS GENTIUM xxxv
Rome regarded herself as rather outside this world whose customs
she was contemplating, although even her earliest practice showed
an inner conviction that she was a very integral part of it indeed.
The moment that she began to trade with the foreigner, whether in
Italy, Sicily, or Africa, she must have seen that her own Jus Civile
was an impossible basis for trading relations. If the Eoman had
no liking to submit to the intricacies of the law of some other state,
the foreign trader had equally little inclination to conform to the
tedious formalities of Eoman law. Some common ground had to be
discovered as the basis for a common court, which might adjudicate
on the claims of Private International Law. This common ground
was found in the Jus Gentium ; the common court was that of the
Eecuperatores of early times *. The history of the Praetorship leads
us to think that the Jus Gentium must have begun to exercise
a modifying influence on Eoman law long before the middle of the
third century B. c. ; for we have seen that for more than 120 years
a single Praetor administered justice both to Gives and Peregrini 2.
A single magistrate therefore published and dealt with two distinct
systems of law. But it would seem to be impossible that he could
have kept the two absolutely distinct, especially when the simplicity
and universality of the Jus Gentium stood in marked contrast to the
complexity and singularity of the Jus Civile. The rigidity of the
forms of Eoman law may have been shaken even at this early period.
But when a second Praetor was appointed to frame a special edict
for Peregrini, the Jus Gentium must have found a still more complete
and systematic expression. The procedure by which the legal
claims of aliens were asserted must have been more fully elaborated.
This was the procedure by Formula, which was to furnish the proto-
type for the method adopted by the Praetor Urbanus, and to replace
the older procedure by Legis Actio in most of the Eoman courts of
law. Nor can we ignore the influence of the Edictum Provinciale,
although this came later and at a time when the typical elements in
Eoman procedure had been fixed. Eome gained some ideas from
the Hellenised East, as in early days she had gained some from
Magna Graecia. It was probably from contact with the East that
she gained the knowledge of such simple forms of written agree-
ment as Syngrapha and Chirographa, and that she acquired her
theory of Mortgage (Hypotheca).
1 Festus, p. 274 : ' Keciperatio est, ut ait (Callus Aelius, cum inter populum et
reges nationesque et civitates peregrinas lex convenit quomodo per reciperatores
reddantur res reciperenturque, resque privatas inter se persequantur.'
2 P. xxxi.
xxxvi HISTORICAL INTRODUCTION
§ 13. The idea of the Law of Nature ; its influence
on Slavery.
The Jus Gentium could not pass from being a mere fact to being
an ideal without gaining some theoretical justification for its existence
and acceptance. This justification was found in the idea that it was
a product of the Law of Nature. It is not improbable that the
superior ' naturalness ' of the Jus Gentium to the Jus Civile had
begun to appeal to the Eomans long before they had begun to be
affected by Greek philosophic thought ; for we know the effect which
was produced on the minds of the Greeks themselves by their early
contact with foreign civilizations. They rapidly drew the conclusion
that what was common to various countries existed by nature (<£tio-«),
what was peculiar to a country existed by convention (v6(up) • and
the KOIVOS vofjios l or TO (j)variKov 8tK<uoi> 2 of the Greeks is practically
identical with the Jus Gentium of the Eomans. Even to the
primitive mind the universality of an institution implies its natural-
ness. But it is very probable that the Stoic conception of Nature
did, to the Roman mind, complete the train of thought and give
a scientific stability to a vague impression. It was not, indeed,
possible to identify the Jus Gentium with the Lex Naturae ; for a
Jus cannot be the same as a Lex. But it might be regarded as the
product of that Lex, as its concrete expression in human society.
The immediate product, however, of the Lex Naturae is the Jus
Naturale. The Jus Gentium tended, therefore, to be identified
with the Jus Naturale ; and the identification seems to be complete
except in one important point. According to the view finally adopted
by the jurists, the Jus Naturale implies personal freedom ; for all
men are born free in a state of nature s. But the Jus Gentium (the
law of the civilized world) admits the institution of Slavery. In
this point, therefore, the two are in conflict, and the Jus Naturale
presents an even higher ideal of society than the Jus Gentium. The
relation between the three types of Jus, known to the theory of
Roman jurisprudence, may be expressed by saying that the Jus
Civile is the Right of man as a member of a state, the Jus Gentium
the Right of the free man, the Jus Naturale the Right of man 4.
The appeal to Nature on behalf of the slave is an index of the
part which he was to play in the development of Roman law.
Roman slavery cannot be judged solely either by the dismal picture
1 Arist. Ehet, i. 13. a Arist. Eth. v. 7.
3 ' Cum jure natural! omnes liberi nascerentur ' (Ulpian in Dig. 1. 1. 4).
* See Muirhead, Historical Introduction to the Private Law of Rome, p. 281 : ' While
the jus civile studied the interests only of citizens, and the jus gentium those of
freemen irrespective of nationality, the law of nature had theoretically a wider
range and took all mankind within its purview.' Compare Carlyle, Mediaeval
Political Theory in the West, ch. 3 (' The Theory of the Law of Nature ').
THEORY OF THE LAW OF NATURE xxxvii
presented by the plantation system, or by the legal theory that the
slave was a mere Thing (Res), a chattel, not a person. We must
remember that the slave, often of an intelligence and culture superior
to those of his master, and gifted with the practical genius and the
capacity for detail characteristic of the Greek, was frequently an
active man of business. We must remember too that the very fact
that he was a chattel might be employed by the law as the basis for
the theory that he was, for this very reason, an excellent Instrument
of Acquisition. So essential was he to his master in his capacity of
agent that the law was forced to recognize that he could be a party
to an obligation. The obligation, it is true, could not be called
legal ; it was only natural (Naturalis obligatio) ! ; but still it was an
obligation that could benefit the master, without making that master's
condition worse2. It was necessary, however, to protect other
parties to these contracts ; and the Praetor gradually created a series
of quasi-liabilities for the master of the trading slave. Such liabilities
are expressed in the actions Quod Jussu, Tributoria, De Peculio, De
in Rem Verso 3. They were created in the interest of the master as
well as in that of the other party to the contract ; for without these
guarantees slave-agency would have become impossible. In the
history of agency the slave plays a distinguished part ; and the part
that he plays is formally justified by the view that he is the
possessor of Natural Rights.
§ 14. Interpretation by the jurisconsults.
All these new influences on Roman law, although they found their
most marked expression in the edicts of the magistrates, were also
absorbed by that Professional Jurisprudence which gives us the
other aspect of the science of Interpretation. It may have been
the more important aspect ; for the teaching of the schools, and the
advice of jurisconsults, no doubt did much to stimulate and guide
the activity of the magistrates. We are told that the influence of
skilled lawyers was for a very long time represented by the College
of Pontifices. Even after the publication of the Twelve Tables and
the revelation of the forms of Action (448, 304 B.C.), and during the
period when secular was becoming more and more divorced from
religious law, the knowledge of jurisprudence was, in virtue chiefly
of the familiar fact that professions once associated are not easily
separated, exhibited mainly in the person of the Pontifex Maximus ;
1 Ulpian in Dig. 44. 7. 14 : ' Servi ... ex contractibus . . . civiliter . . . non
obligantur ; sed naturaliter et obligantur et obligant.'
a ' Melior condicio nostra per servos fieri potest, deterior fieri non potest '
(Gaius in Dig. 50. 17. 133).
3 Gaius, iv. G9--74 ; Justin. Inst. iv. 7.
xxxviii HISTORICAL INTRODUCTION
and the men who held this office still furnished for centuries the
leading names to Roman jurisprudence. At first the science was
imparted with an air of mystery ; the advice was occasional and
elicited only by special request. But finally the profession of law
on the part of the Pontiffs became more open and more systematic.
The first of these who taught the science publicly is said to have
been Tiberius Coruncanius 1 (circa 280 B.C.), who was also the first
plebeian Pontifex Maximus. Lastly, the stage of written com-
mentaries was reached. These commentaries were stimulated by
the increasing difficulty of interpreting the language and meaning
of the Twelve Tables. The earliest commentator on this code who
is known to us, was Sextus Aelius Paetus, consul in 198 and censor
in 193 B.C. He busied himself with the interpretation of the legal
difficulties connected with the Tables, and published a work called
Tripertita, which gave in three divisions the text of the Tables, an
explanation of each ordinance, and the form of action applicable to
the cases which these ordinances raised 2. His later contemporary,
Acilius, seems also to have been a legal commentator s. An ex-
planation of the obsolete language of the Tables was, so far as we
know, first attempted by the great philologist Lucius Aelius Stilo
Praeconinus, who was born about 154 B.C.* One of the results of
the work of these commentators was that the text of the Tables, as
it appeared in their editions, became the recognized, and in fact the
only, text for all subsequent ages ; for it seems quite clear that the
later commentators, as for instance Gaius, had no knowledge of any
antique copy of the Tables, engraved on metal and posted up in
some public place 6. But there was another reason why a knowledge
of the Tables, in their original form, was becoming decadent even
during the period of the later Eepublic. The Praetor's Edict, as
a living source of law, was superseding the ancient Code. Juristic
investigation was grappling with present problems and did not care
to concern itself with the antique. The Tables had been explained ;
now they were to be expanded. But the expansion came with the
edict, and with the creative jurisprudence which was a product of
the new Greek culture and the extension of the Roman Empire.
The founders of this scientific jurisprudence, whose labours were to
be perpetuated by the lawyers of the Principate, were Marcus Junius
Brutus, Marcus6 Manilius and Publius Mucius Scaevola, all of whom
1 Pompon, in Dig. 1. 2. 2. 38.
2 Pompon. 1. c. ; cf. Cic. de Leg. ii. 23. 59 ; de Or. i. 56. 240 ; Brut. 20. 78 ; de Rep.
i. 18. 30.
3 Cic. de Leg. ii. 23. 59 ; de Amic. 2. 6. He is called Atilius by Pomponius (I. c.).
See Scholl, Legis duodecim tabularum reliquiae, p. 25.
4 Teuffel-Schwabe, GeschicMe der rbmischen Litteratur, § 125 ; SchOll, op. cit. p. 26.
s Scholl, op. cit. pp. 11, 15. 6 Sometimes written ' Manius.'
JURISCONSULTS OF THE REPUBLIC xxxix
flourished about the middle of the second century B. c. They were
followed by a long line of distinguished successors to the close of
the Kepublic 1. The study of law was becoming professional, but it
was not confined to a body of men who made jurisprudence the sole
business of their lives 2. The knowledge and exposition of law was
an incident in the career of some of the greatest statesmen of the
day. It may have been their ruling, but it was by no means their
sole interest ; and sometimes the fruitful experience of a lifetime
spent in an active forensic and political career was given to admiring
students during the repose which marked the closing years of the
statesman's life3. The rewards of the profession were purely
honorary ; the only payment was repute, gratitude, or political sup-
port ; and the practical utility of the jurists was as much valued as
their theoretical knowledge. They pleaded or gave advice to pleaders ;
they gave a scientific precision to the formulae of legal business ; and
they returned replies (responsa) to the questions of litigants, magis-
trates, or judices on legal points which arose whether before or in
the course of the hearing of a case 4. It was through these replies,
which were given sometimes in private, sometimes in the Forum 5,
that the jurisconsults became great oral and literary teachers. The
replies were sometimes given in writing 6 ; but, even when verbal,
were often collected into books ; and the audience which received
them was by no means confined to those who were primarily in-
terested in the answers. The young were admitted to the consulta-
tions 7, and the consultation often closed with a disputation 8. This
practice led eventually to systematic teaching ; disciples attached
themselves to a particular exponent of law, who gave some a pre-
liminary training and directed others in a course of study that was
more advanced 9. In no respect was this system of education re-
gulated by the State. No teacher was more authentic than another.
1 See Roby, Introduction to the Study of Justinian's Digest, pp. 95-124.
a On the characteristics of the study of law during this period see Kriiger,
Oeschichte der Quellen und Litteratur des romischen Eechts, pp. 48 foil.
3 Cic. de Or. i. 45. 199-200, ' Quid est enim praeclarius, quam honoribus et rei
publicae muneribus perfunctum senem posse suo jure dicere idem, quod apud
Ennium dicat ille Pythius Apollo, se esse eum, unde sibi, si non populi et reges,
at omnes sui cives consilium expetant . . . Est enim sine dubio domus juris-
consulti totius oraculum civitatis.'
* These three functions are summed up by Cicero in the words agere, cavere,
respondere. See Cic. de Or. i. 48. 212 : ' Sin autem quaereretur, quisnam juris-
consultus vere nominaretur, eum dicerem, qui legum et consuetudinis ejus, qua
pi'ivati in civitate uterentur, et ad respondendum et ad agendum et ad cavendum
peritus esset.' Cf. Kriiger, op. cit. p. 49.
5 Cic. de Or. iii. 33. 133.
6 Cic. pro Mur. 9. 19. Cicero here describes the ' urbanam militiam respon-
dendi, scribendi, cavendi.' The interpretation that I have given to scribere is
that of Kriiger, op. cit. p. 50. Cf. Cic. Top. i. 1. 4.
7 Cic. Orator, 41. 142, 42. 143.
' Cic. Top. 14, 56. » Kriiger, op. cit. p. 51.
3d HISTORICAL INTRODUCTION
Controversy grew and flourished1. The only proof of the validity
of an opinion was its acceptance by a court. But even this was but
a slender proof; for different Praetors or Judices might be under the
sway of different jurists. It required a single superior court and a
single controlling authority (both of which were found in the Princi-
pate) to guide the stream of legal opinion into narrower and more
certain channels.
Amidst this stream of interpretation we discern one attempt to
give a fixity to at least a part of Eoman law. Ofilius, a Koman
knight of the period of Cicero and Caesar, was the first to reduce
the Praetor's Edict to some kind of system2. It is probable that
a still greater work of revision was at one time projected for this
jurist ; for we are told that Caesar, amidst his ambitious schemes
for the regeneration of the Roman world, conceived the idea of
making a digest of the Roman law3. Had he lived to carry out
this scheme, it is probable that Ofilius would have been entrusted
with the work.
§ 15. Reforms in Procedure effected during the later period
of the Republic.
The progress effected during this period in the theory of law was
accompanied by a great reform in procedure. From about 150 B. c.
the process both of the civil and criminal courts began to assume
a form which was final for the period of the Republic, and which
was supplemented, but not altered, during the greater part of the
period of the Principate *. In the domain of Civil Procedure, a Lex
Aebutia gave some kind of formal sanction to the practice by which
the Praetor tended to substitute the simpler Formula for the more
complex Legis Actio 8. The Formula had perhaps first been employed
in the statement of cases for Peregrini. Its utility commended its
use for cases in which Roman citizens alone were involved. The
Praetor Urbanus employed it for his honorary jurisdiction ; it was
then transferred (doubtless by the Lex Aebutia) to the civil law as
an alternative, in most cases, to the Legis Actio. We cannot say in
1 Cic. de Or. i. 38. 173 ; 57. 241, 242 ; pro Mur. 12. 27 ; 13. 28.
2 Pompon in Dig. 1. 2. 2. 44 : ' De jurisdictione idem (Ofilius) edictum praetoris
primus diligenter composuit.'
3 Suet. JwZ. 44. Ofilius' intimacy with Caesar is noticed by Pomponius (Dig. I. c.).
4 The civil procedure of the judicia ordinaria survived the Principate. When
the criminal procedure of the quaestiones perpetuae disappeared is unknown.
Their disappearance has been placed as early as the close of the first century A. D.
(Geib, Criminalprocess, pp. 392-397). But it has been thought that Dio Cassius
(lii. 20, 21) implies their existence in his own time, at the beginning of the
third century A. D.
4 Gaius, iv. 30 ; Gell. xvi. 10. 8. The date of the law is unknown, but is not
likely to be earlier than 150 B. c. Girard (Manuel, p. 987) finds indications for
placing it between 149 and 126 B. c.
REFORMS IN PROCEDURE xli
what form the alternative was presented. We know that the
law must have exempted certain kinds of jurisdiction from the
Formula — the jurisdiction, for instance, of the Centumviral and
Decemviral courts. But it may have allowed the Praetor to
substitute the one procedure for the other in most spheres of civil
jurisdiction ; and, where the Praetor still permitted the Legis Actio
and the Formula to stand side by side in his Album, it may have
given the litigants a choice between the two. The two methods of
procedure still exist side by side in Cicero's time ; but the formulary
procedure is demonstrably the more general of the two.
About the time when this reform was being effected, an attempt
was made to create a method of criminal procedure, simpler and
more effective than that of a trial before the People. The type
on which the new criminal courts were constituted was furnished in
the main by Civil Procedure. Cases of extortion (Repetundarum),
in which compensation was demanded for a delict, were first tried
before a Praetor and Recuperatores. This was a mere provisional
arrangement initiated by the Senate for the benefit of the provincials l.
But the system, or one closely modelled on it, was perpetuated by
the Lex Calpurnia Repetundarum of 1 49 B. c. 2, and gradually these
recuperatorial boards grew into great panels of Judices, the qualifica-
tions for the jurors being specified by judiciary laws (Leges Judi-
ciariae). Finally, almost the whole sphere of the criminal law was
embraced by a series of enactments which created standing courts
(Quaestiones Perpetuae, or Judicia Publica), each for the trial of
a special offence or a group of related crimes. All of these courts
followed the same model. In each a President (Quaesitor), who was
generally a Praetor, sat with a bench of Judices who pronounced
a penalty fixed by the law which had constituted the court. From
the judgment of these Judices there was no appeal to the People.
§ 16. The Creation of the Principate — Changes in the
Sources of Law.
The change from the Republic to the Principate introduced no
very sudden alterations in the sources of law or the methods of
procedure. Both, as we shall see, were supplemented by new
creations ; but up to the time of Gaius it was possible to appeal to
the Republican system as the one that underlay the legal life and
the judicial organization of Rome3. All that was added by the
1 Liv. xliii. 2. a Cic. Brut. 27. 106 ; de Off. ii. 21. 75.
3 Yet it is to be observed that Gaius, in his statement of the sources of law
(i. 2), puts those which were antiquated in his time (Lex and Plebiscitum) on
the same level as those which were living. The statement is juristically correct,
in so far as the body of Koman law in his time had sprung from all these
xlii HISTORICAL INTRODUCTION
Principate was in the nature of an excrescence — one that was
probably healthy in its effects, in spite of the fact that it does seem
to have limited to a certain extent the creative activities of juristic
thought. The birth of the Principate was not conditioned by strictly
legal necessities. There seems to have been little sense that a single
controlling force was needed for the guidance of the law of Rome,
Italy, and the provinces. The justification for the Principate was
found in the fact that a single controlling power was necessary for
the command of the army and the routine administration of the
provinces. But it was impossible to create such a power without
bringing it into some contact with every department of the State.
The guidance of legislation and judicature by an individual will was
a necessary outcome of the new order of things ; and it is possible
that this guidance was needed. There is a stage in the history of
law where liberty of interpretation may lead to perplexing un-
certainty, and there is a stage in the history of any national judicial
organization where certain radical methods are necessary to adapt
it to new needs. The Principate gave a definiteness to law, but
a definiteness that was in no sense illiberal. On the contrary, it
prevented law from being narrowly Roman as effectually as it
checked it from recklessly absorbing foreign elements. It adapted
law to provincial needs by expanding, but not impairing, its national
character. At the same time it widened the scope of jurisdiction by
methods which we shall soon describe — methods which seem to have
increased the efficiency at least of the civil courts at Rome, and
which brought the provincial world into closer judicial relations
with the capital. The changes effected both in legislation and in
jurisdiction were gradual and progressive ; and, though they were
from a formal point of view initiated by the will of individual
monarchs, it is important to remember that, at Rome as elsewhere,
monarchical power is the outcome of the concurrence of many
individual wills. For the sake of convenience we are accustomed
to treat the Princeps as the chief source of law and the chief
influence on jurisdiction. Sometimes a purely personal power of
this type may have been realized for a while, although when so
realized it always had a flavour of tyranny1. But as a rule, when
we think of the Princeps as a source of law and justice, we should
be thinking of his judicial advisers and assessors. The trained
sources ; but the method of statement is likely to convey a false historical
implication. Cf. pp. xlv-xlviii.
1 We may instance the view of Caligula on the jus respondendi of the juris-
consults. Suetonius says (Calig. 34) ' De juris quoque consultis, quasi scientiae
eorum omnem usum aboliturus, saepe jactavit " se mehercule effectxirum ne
quid respondere possint praeter eum."' This was a desire that found no
fulfilment during the Principate.
THE PRINCIPATE xliii
jurist still plays a leading part in legal progress. His control of
the Princeps, and the Princeps' control of him, must both be taken
into account, although the actual extent of the respective influences —
of the administrator over the jurist and of the jurist over the adminis-
trator— can never be determined for any given act or for any given
moment of time.
A division of power of this type is perhaps common to all
monarchies. But in the Roman Principate, which was not tech-
nically a monarchy, we find it expressed in yet another way — a way
which is of more importance theoretically, although perhaps of less
practical import. It is expressed in the form that the Princeps is
merely the ' extraordinary magistrate ' of a Republican Constitution.
By an ' extraordinary magistracy ' is meant a magistracy formed by
an accumulation of functions, each of which is usually exercised by
a particular magistrate. The chief powers with which the Princeps
was invested were the Proconsulare Imperium conferred by the
Senate, and the Tribunicia Potestas conferred on a recommendation
of the Senate in a formal meeting of the People. The Proconsulare
Imperium was technically valid only outside the limits of Italy ; but,
as it was absolutely necessary that the Princeps should possess
Imperium within Rome, he was specially exempted from losing his
Imperium by his presence within the city. The effect of this
exemption probably was to create for the Princeps a kind of consular
Imperium in Rome and Italy. But even this device was not sufficient
to secure for him the authority which he required as a moderator of
the whole State. The Proconsulare Imperium and the Tribunicia
Potestas required to be supplemented by a number of separate powers
.conferred by special grants. These grants must originally have been
made by special laws and decrees of the Senate that were passed at
various times ; but the practice seems soon to have been adopted of
embodying them in a single enactment, which was submitted to the
formal assent of the People at the time when the Proconsulare
Imperium and the Tribunicia Potestas were conferred. A fragment
of such an enactment is the extant Lex or Senatusconsultum which
enumerates powers conferred on the Emperor Vespasian at his
accession1. The rights of the Princeps enumerated in this document
are of a very heterogeneous kind — they include the powers of making
treaties, extending the pomerium of the city, commending candidates
1 The document is to be found in the Corpus Inscriptionum Latinarum, vi.
n. 930, and in Bruns, Fontes Juris Romani Antiqui, v. 19. It describes itself as
a law (1. 34 'Si quis hujusce legis ergo,' &c. ), and is generally known as the
Lex de imperio Vespasiani. But its wording bears more analogy to that of
a Senatusconsultum. It seems to be a decree of the Senate which is intended
to be submitted to the People for their formal assent. See Mommsen, Staatsr. ii,
p. 878.
da
xliv HISTORICAL INTRODUCTION
for office, and issuing edicts as interpretations of law, human and
divine ; and, important as they are, they have no direct connexion
with either the Proconsulare Imperium or the Tribunicia Potestas.
Some of the most imposing powers of the Princeps were dependent
on neither of these two sources, but were contained only in this
general Lex ; and, as fresh prerogatives were added to the Principate,
the Lex would grow in bulk and importance. Some development of
this kind may account for the fact that Gaius and Ulpian both speak
of the Princeps receiving his Imperium through a Lex \ Such an
expression could not have been used of the early Principes ; for the
Proconsulare Imperium was received through a decree of the Senate ;
but it is possible that in the course of time the general Lex, as
enumerating the majority of the prerogatives of the Princeps, came
to overshadow the other sources of his authority.
Since the authority of the Princeps was built up in this gradual
and unsystematic way, it is quite impossible for the modern inquirer
to determine with precision the sources of the exercise of his different
powers. But a rough estimate may be made of five distinct kinds
of prerogative and of the activities flowing from each. (1) With the
Imperium were connected the control of the army and the provinces,
the right of declaring war and of making treaties, the power of
conferring Roman citizenship or Latin rights, civil and criminal
jurisdiction, and the general power of legal interpretation. (2) The
Tribunician Power, besides making the Princeps sacrosanct, gave
him the right, exercised during the earlier period of the Principate
but afterwards neglected, of initiating measures in the Assembly of
the Plebs, and also the right of transacting business with the Senate,
although this second right was extended by special grants. The
power of veto, inherent in the Tribunicia Potestas, gave the Princeps
a control over all the other magistrates of the State, enabled him to
exercise over the jurisdiction of the Senate a power akin to that of
pardon, and probably formed the basis of much of his appellate
jurisdiction. (3) Two of the Principes, Claudius and Vespasian,
were invested with the temporary office of censor, and Domitian
declared himself censor for life. His example was not followed by
succeeding rulers ; but the most important of the functions of the
censors — the revision of the lists of Senators and Knights — continued
to be a part of the admitted prerogatives of the Princeps. Akin to
this right was that of creating Patricians, which had been conferred
1 Gaius, i. 5; Ulpian in Dig. 1. 4. 1: 'Quod principi placuit, legis habet
vigorem ; utpote cum. lege regia, quae de iinperio ejus lata est, populus ei et in
eum omne suum imperium et potestatem conferat.' It has been questioned
whether the expression lex regia was in vogue even in the time of Ulpian, and it
may be an interpolation. The expression is found in Justinian (Cod. 1. 17. 1. 7).
See Mommsen, Staatsr. ii, pp. 876, 877.
LEGISLATION DURING THE PRINCIPATE xlv
by law on Caesar and Augustus, had been exercised by Claudius and
Vespasian as censors, and finally became a right inherent in the
Principate itself. (4) The Princeps, besides being a member of all
the great religious colleges, was, as Pontifex Maximus, the official
head of the state-religion, and was invested by law with the power of
executing ordinances which were to the interest of the religious life
of the community 1. (5) Supplementary powers, which cannot be
described by a common name or connected with any definite office,
were granted to the Princeps. Some of these were means by which
his control over the magistrates and the Senate was increased. Such
were the rights of securing the election of certain candidates for
office by means of a recommendation (Commendatio), and of exercising
powers in relation to the Senate superior to those possessed by the
other magistrates.
An authority thus endowed could not fail to exercise a strong
directing influence on the sources of law and the methods of
procedure. The influence asserted itself from the first ; yet for at
least two centuries there was always a formal, and sometimes a real
recognition of the theory on which the Principate was based — the
theory of a dual control exercised by the Princeps on the one hand,
by the usual organs of the Kepublic on the other. The chief organ
by which the Kepublic was represented was now no longer the
People, but the Senate ; and the dual sovereignty — or ' Dyarchy,'
as it has been called — can be illustrated chiefly by the division of
authority between the Princeps and the Senate.
As regards the sources of law, even the utterances of the People
were for some time elicited. Leges and Plebiscita — specimens of
which are to be found in the Leges Juliae of Augustus, the Lex
Aelia Sentia belonging to the reign of the same monarch, the Lex
Junia Norbana of the reign of Tiberius, the Leges Claudiae of the
Emperor Claudius — continued to be passed during the early
Principate. The last trace of legislation belongs to the reign of
Nerva (96-98 A.D.)2.
Even before legislative power had been surrendered by the Comitia,
it had begun to pass to the Senate ; and down to the third century
A.D., such general ordinances as tended to alter the fundamental
legal relations of Eoman citizens to one another were generally
expressed in the form of Senatusconsulta. The Senatusconsultum
was a true source of the Jus Civile. Yet it did not attain the formal
structure, or always adopt the imperative utterance, of a law. Its
utterances are often couched in an advisory form3, as though the
1 Lex de Imp. Vesp. 1. 17.
2 Dig. 47. 21. 3. 1.
3 Thus the S. C. Vdkianum begins : ' Quod Marcus Silanus et Velleus Tutor
xlvi HISTORICAL INTRODUCTION
Senate of this period, like that of the Kepublic, were merely giving
counsel to a magistrate. Gaius attributes to these decrees 'the
binding force of law ' ; and it does not seem that the early doubts
as to whether the Senate could pass ordinances immediately binding
on the community l survived the beginning of the Principate.
The Praetor's edict still continued to be issued ; nor are we told
that the edictal power was in any way infringed during the early
Principate. But there are two considerations which would lead us
to conclude that it was seriously weakened. The first is based on
the fact that edictal power in the highest degree was conferred by
law on the Princeps himself 2 ; and the existence of two interpreters
of the civil law possessing equal authority is almost inconceivable.
The second consideration rests on the probability that the Praetor's
rulings in detail were subject to the veto of the Princeps. A new
ruling was often the basis for a new formula and a new edict, and
if the first of these was inhibited, its successive developments could
not be realized. Progressive legislation was effected elsewhere, in
decrees of the Senate and in the imperial constitutions ; and the
final sign that the creative work of the Praetors was a thing of the
past was given when, in the reign of Hadrian (117-138 A.D.), and
therefore probably in the lifetime of Gaius, the work which Ofilius
had begun s was perfected by the jurist Salvius Julianus. He
reduced the edict to a fixed and definite system 4 ; and from this
time onward the Edictum Perpetuum was, in its essential features,
unalterable. Absolute validity was given to the new redaction
by a Senatusconsultum introduced by a speech from the Emperor
Hadrian, who declared that any new point, not contemplated in
the edict, should be decided by analogy with it6. It is probable
that such new points were still mentioned in successive edicts ; for
it is certain that the edict still continued to be issued annually.
The work of Julian could, therefore, never have been meant to be
unalterable in a literal sense. Such invariability would indeed have
been impossible ; for, though changes in law were now beginning to
be made chiefly by ordinances of the emperor, yet these very changes
would neeer jitate corresponding changes in the details of the edict.
consules verba fecerunt . . . quid de ea re fieri oportet, de ea re ita censuere.'
See Kriiger, op. cit. p. 82.
1 Gpjius, i. 4. Cf. Ulpian in Dig. 1. 3. 9 ' Non ambigitur senatum jus facere
posse. Papinian (Dig. 1. 1. 7) recognizes senatusconsulta as a source of jus.
2 Lex de Imp. Vesp. 1. 17 ' Utique quaecunque ex usu rei publicae . . . censebit,
ei agere facere jus potestasque sit.'
3 P. xl.
4 Victor, Caes. 19 ' Primus edictum quod varie inconditeque a praetoribus
promebatur in ordinem composuit.' Eutrop. viii. 17 ' Perpetuum conposuit
edictum.'
8 Cod. 1. 17. 2. 18 ; Constitution At'Scwcw (prefixed to Digest), 18.
THE PKINCEPS AS A SOURCE OF LAW xlvii
The fixity of Julian's edict was to be found both in its structure and
in its leading principles ; in the order in which the rules of law
were marshalled and in the general significance of these rules. It
has been supposed that Julian's work was not confined to the edict
of the Praetor Urbanus, but that he dealt also with the edicts of the
Praetor Peregrinus and of the Curule Aediles J. He may have
treated these edicts separately ; but the three may have been
combined in a single comprehensive work which was spoken of as
'The Edict2.'
By the side of these sources of law which survived from the
Kepubtic stood the new authority, the Princeps. He was not
regarded as, in the strict sense, a legislative authority ; but he or his
advisers exercised a profound influence on the growth and structure
of law in virtue of his power of issuing Edicts, Decrees, Eescripts, and
Mandates. The Edictum of the Princeps was, like that of the
Praetor in the Kepublic, technically an interpretation of law, but, like
the Praetor, the Princeps could supplement and alter under the guise
of interpretation : and his creative power, as exercised by his edictal
authority, was very great. An edict of an emperor did not necessarily
bind his successors ; but, if it had been accepted as valid by a series
of emperors, it was considered to be a part of the law, and its
subsequent abandonment had apparently to be specified by some
definite act of repudiation 3. The Decretum was a judgment of the
Princeps as a court of justice ; and, unless it was rescinded in a
succeeding reign, its validity as a precedent seems to have been
unquestioned. The Rescriptum was technically an answer to a letter
by which the advice of the Princeps was sought ; but the word soon
came to be used for the Princeps' letter (Epistola) itself. It contained
instructions either on administrative or on judicial matters. In its
first capacity, it was addressed to some public official subordinate to
the emperor ; in its second, it was addressed either to the judge or to
the litigant. It was elicited either as an answer to the consultation
(Consultatio) of an official or a judge who hesitated as to his course of
procedure, or as a reply to a petition (Libellus, Supplicatio) of one of
the parties to a suit. The Rescript which dealt ^ith judicial
matters might settle a doubtful point of law by showing, or extending,
the application of an existing principle to a new case. The Rescript
was the most powerful instrument of law-making wielded by the
Princeps. The definiteness of its form gave the opinion an authority
1 We hear of the Edictum Aedilium in the Constitutions ' Omnem ' (4) and
AeSwKev (5) prefixed to the Digest.
2 It is possible that the common elements in the provincial edicts were
reduced to a system at this time. Cf. p. xxxiii.
3 Paulus (Dig. 28. 2. 26) uses the expression ' Jam sublato edicto divi August!,'
a phrase which suggests something more than mere neglect.
xlviii HISTORICAL INTRODUCTION
which, once accepted by a successor, could not easily be questioned ;
while the immense area over which these letters of advice were sent
kept the Princeps in touch with the whole provincial world, and
caused him to be regarded by the provincials as the greatest and
most authentic interpreter of law. The Edicts, Decrees, and Rescripts
came to be described by the collective name of ' Imperial Consti-
tutions ' (Constitutiones Principum), and by the time of Gaius they
were held to possess, in a uniform degree, 'the binding force of
law1.' On a lower level, with respect to legal validity, stood the
Mandatum. This was a general instruction given to subordinate
officials, for the most part to governors of provinces, and dealt
usually with administrative matters, although sometimes it had
reference to a point of law. Such mandates might be, and often
were, withdrawn by the Princeps who had issued them, or by his
successor. Hence it was impossible to attach perpetual validity to
their terms. But, when a mandate dealt with a precise point of law,
and was renewed by successive emperors, it must have acquired the
force of a Rescript 2.
§17. Changes in Procedure under the Principate.
The creation of the office of Princeps, and the extension of the
authority of the Senate, exercised an influence on jurisdiction as
well as on legislation. The two new features of the judicial system
were the growth of extraordinary jurisdiction and the growth of
Courts of Appeal. The name 'extraordinary' (extra ordinem) was
given to all jurisdiction other than that of the ordinary civil* and
criminal courts (Judicia Ordinaria) which had survived the Republic.
It often dealt with eases not fully provided for by these courts ; and
its chief characteristic was that the cognizance (Cognitio), both on the
question of law and on the question of fact, was undertaken solely by
the magistrate or by a delegate nominated by him (judex extra
ordinem datus)3. In civil matters, the Princeps sat as such an
extraordinary court, and either exercised, or delegated, jurisdiction
in matters such as Trust or Guardianship. He might take other
1 Gaius, i. 5. Cf. Ulpian in Dig. 1. 4. 1. 1 ' Quodcumque . . . imperator per
epistulam et subscriptionem statuit vel cognoscens decrevit . . . vel edicto
praecepit, legein esse constat. Haec sunt quas vulgo constitutiones appellamus.'
a Thus the soldier's testament was created by a series of mandates (Dig.
29. 1. 1).
3 Such a delegate might be given by the consuls when exercising extraordinary
jurisdiction (Gell. xii. 13. 1 ' Cum Romae a consulibus judex extra ordinem
datus pronuntiare . . . jussus essem '). .Such a judex represented the magistrate
more fully than the judex of ordinary jurisdiction. He was not tied down
within the limits of a formula.
NEW METHODS OF PROCEDUEE xlix
cases, if he willed ; but his jurisdiction was always voluntary ; and,
if he declined to act, the case went before the Praetor. In criminal
matters, two high courts of voluntary and extraordinary jurisdiction
were created — that of the Princeps and that of the Senate. The
Princeps might take any case, but often limited his intervention to
crimes committed by imperial servants or by officers of the army.
The jurisdiction of the Senate was especially concerned with offences
committed by members of the upper ranks of society, or with
crimes of a definitely political character.
The system of appeal introduced by the Principate was of a
complicated character, and many of its features are imperfectly
understood. It seems that, at Kome, the Princeps could in civil
matters veto, and perhaps alter, the decision of a Praetor, but could
not annul the verdict of a Judex, except by ordering a new trial l.
He could of course vary the decisions of his own delegates in matters
of extraordinary jurisdiction. In criminal matters the Princeps
does not seem to have had the power of altering the decisions of the
Quaestiones Perpetuae ; but he could probably order a new trial 2.
There was technically no right of appeal from the Senate to the
Princeps 3 ; but the Princeps could exercise what was practically a
power of pardon by vetoing the decisions of the Senate in virtue of
his Tribunicia Potestas. In the provincial world, the right of
appeal was at first regulated in accordance with the distinction
between Caesar's provinces and the provinces of the Roman people.
From Caesar's provinces the appeal lay to Caesar ; from the other
provinces it came to the Consuls and, at least if it was concerned
with a criminal matter, was by them transmitted to the Senate.
But we know that this system of dual jurisdiction was breaking
down even in the first century of the Principate, and that the
appellate jurisdiction of the Princeps was tending to encroach on
that of the Consuls and Senate 4. The extent to which it had broken
down in the time of Gaius is unknown. But we know that, by the
end of the second century A. D., the Princeps was the Court of
Appeal for the whole provincial world. For this purpose he was
usually represented by the Prefect of the Praetorian Guard.
1 This was done by the fiction of In integrum restitutio. Cf. Suet. Claud. 14
' (Claudius) iis, qui apud privates judices plus petendo formula excidissent,
restituit actiones.'
2 The Emperor Gordian is spoken of as -naKivZiKiav StSovs rots aS'ttcajs KaraKpiOtiai
(Herodian, vii. 6. 4).
3 Ulpian in Dig. 49. 2. 1. 2 ' Sciendum est appellari a senatu non posse
principem, idque oratione divi Hadriani effectum.' There can be little doubt
that the principle was confirmed, not created, by Hadrian.
* Nero at the beginning of his reign in 54 A. D. professed a desire to restore
the original principle (Tac. Ann. xiii. 4 ' Teneret antiqua munia senatus,
consulum tribunalibus Italia et publicae provinciae adsisterent ').
1 HISTORICAL INTRODUCTION
§ 18. The work of the Jurisconsults under the Principate.
The official organs which made Roman law were now, as under
the Republic, assisted by the unofficial or semi-official activity of the
jurisconsults. Some of these teachers were now given public recog-
nition as authoritative sources of law. We are told that Augustus
granted the right to certain jurisconsults to respond under imperial
authority ; and this practice was continued by his successors on the
throne. Amongst the earlier of these patented jurisconsults was
Masurius Sabinus, of the time of the Emperor Tiberius '. The
granting of this privilege did not diminish the activity of the
unpatented lawyers2, although it doubtless diminished their in-
fluence ; but it gave the response of its possessor as authoritative
a character as though it had proceeded from the emperor himself3.
The response was usually elicited by a party to the suit and presented
to the Judex 4. He was bound by the decision c ; but naturally only
on the assumption that the facts as stated in the petition which
elicited the Rescript were the facts as exhibited in the course of the
trial 6. It may have been understood that the opinion of only one
patented counsellor was to be sought in any single case ; for in the
early Principate there seems to have been no provision determining
the conduct of a Judex when the opinions of his advisers differed.
Later it must have been possible to elicit the opinion of several
patented jurists on a single issue ; for the Emperor Hadrian framed
the rule that, in the case of conflicting responses, a Judex should be
entitled to use his own discretion 7.
§ 19. Literary activity in the domain of. Law to the
time of Gaius.
The literary activity in the domain of law, during the period
which intervened between the accession of Augustus and the time
of Gaius, was of the most varied character8. Religious law (Jus
1 Pomponius in the Digest (1. 2. 48-50) says 'Massurius Sabinus (of the time
of Tiberius) in equestri ordine fuit et publice primus respondit '; but he also adds :
' Primus divus Augustus, ut major juris auctoritas haberetur, constituit, ut ex
auctoritate ejus responderent.' To make the statements square with one
another, Mommsen would strike out the words 'fuit et' in the first paragraph,
as being the addition of an interpolator. The statement would then be that
Sabinus was the first patented jurisconsult of equestrian rank.
2 This seems shown by the story told by Pomponius in Dig. 1. 2. 2. 49.
3 Yet the response was not regarded as a delegation of the power of the
Princeps to issue Rescripts. It may, however, have formed the model for the
judicial Rescript. See Krxiger, op. cit. p. 110, note 5.
4 Not merely to the Judex privatus, but to the Judex extra ordinem datus, and
even to the magistrate who was judging.
5 Justin. Inst. i. 2. 8. 6 Kriiger. op. cit. p. 110. 7 Gaius, i. 7.
8 For a detailed description of this literature see Roby, Introduction to the Study
of Justinian's Digest, pp. 124-174.
THE INSTITUTES OF GAIUS li
Pontificium) attracted the attention of Capito. Labeo wrote on the
Twelve Tables. The Praetor's Edict was the subject of studies by
Labeo, Masurius Sabinus, Pedius and Pomponius. The Edict of the
Curule Aediles was commented on by Caelius Sabinus. Salvius
Julianus, besides his redaction of the Edicts1, produced a work
known as Digesta, which perhaps assumed the form of detailed
explanations of points of law systematically arranged. Compre-
hensive works on the Civil Law were furnished by Masurius Sabinus
and Caius Cassius Longinus. Other jurists produced monographs on
special branches of law, as the younger Nerva on Usucapion, Pedius
on Stipulations, Pomponius on Fideicommissa. Some lawyers wrote
commentaries on the works of their predecessors. It was thus that
Aristo dealt with Labeo, and Pomponius with Sabinus. Other
works took the form of Epistolae, which furnished opinions on
special cases which had been submitted to their author, and
collections of Problems (Quaestiones). Nor was history neglected.
There must have been much of it in Labeo's commentary on the
Twelve Tables ; and Pomponius wrote a Handbook (Enchiridion),
which contained a sketch of the legal history of Eome from the
earliest times.
§ 20. The Institutes of Gains ; their place in the Literature
of Law.
The Institutes of Gaius are a product of this activity ; for it is
necessary that a great deal of detailed and special work shall be
done in a science before a good handbook on the subject can be
written for the use of students. The name of Gaius's work does
not appear in the manuscript ; ' but 2 from the proem to Justinian's
Institutes appears to have been INSTITUTIONS, or to distinguish it
from the systems of rhetoric which also bore this name, INSTITU-
TIONES JURIS CIVILIS. From the way in which it is mentioned by
Justinian, we may infer that for 350 years the elite of the youth of
Eome were initiated in the mysteries of jurisprudence by the manual
of Gaius, much as English law students have for many years com-
menced their labours under the auspices of Blackstone. It is
probably in allusion to the familiarity of the Koman youth with
the writings of Gaius that Justinian repeatedly calls him (e. g. Inst.
proem. 6 ; Inst. 4, 18, 5 ; and in the Constitution prefixed to the
Digest, and addressed ad Antecessores, § 1), "our friend Gaius"
(.Gaius noster). The shortness of the time that sufficed Tribonian
and his colleagues for the composition of Justinian's Institutes
1 P. xlvii.
2 These passages in inverted commas are taken from Mr. Poste's preface to the
third edition of his work.
lii HISTORICAL INTRODUCTION
(apparently a few months towards the close of the three years
devoted to the compilation of the Digest, Inst. proem) is less
surprising when we see how closely Tribonian has followed the
arrangement of Gaius, and how largely, when no change of legisla-
tion prohibited, he has appropriated his very words.'
'Certain internal evidences fix the date at which portions of the
Institutions were composed. The Emperor Hadrian is spoken of
as departed or deceased (Divius) except in 1. § 47 and 2. § 57.
Antoninus Pius is sometimes (1. § 53, 1. § 102) named without this
epithet, but in 2. § 195 has the style of Divus. Marcus Aurelius
was probably named, 2. § 126, and the Institutions were probably
published before his death, for 2. § 177 contains no notice of a
constitution of his, recorded by Ulpian, that bears on the matter
in question. Paragraphs 3. § 24, 25, Would hardly have been
penned after the Sc. Orphitianunij A. D. 178, or the Sc. Tertullianum,
A. D. 158,' It has, however, been held that Gaius when he wrote
the Institutions was acquainted with the Sc. Tertullianum, and that
a mention of it occupied a gap in the manuscript which is found in
3. 33. See the commentary on this passage.
The discovery of the text of the Institutions was made in 1816.
In that year 'Niebuhr noticed in the library of the Cathedral Chapter
at Verona a manuscript in which certain compositions of Saint
Jerome had been written over some prior writings, which in certain
places had themselves been superposed on some still earlier in-
scription. In communication with Savigny, Niebuhr came to the
conclusion that the lowest or earliest inscription was an elementary
treatise on Bo man Law by Gaius, a treatise hitherto only known, or
principally known, to Roman lawyers by a barbarous epitome of its
contents inserted in the Code of Alaric II, King of the Visigoths
(§ 1,22, Comm.). The palimpsest or rewritten manuscript originally
contained 129 folios, three of which are now lost. One folio be-
longing to the Fourth Book (§ 136-§ 144), having been detached by
some accident from its fellows, had been published by Maffei in his
Historia Tcologica, A.D. 1740, and republished by Haubold in the
very year in which Niebuhr discovered the rest of the codex.'
' Each page of the MS. generally contains twenty-four lines, each
line thirty -nine letters ; but sometimes as many as forty-five. On
sixty pages, or about a fourth of the whole, the codex is doubly
palimpsest, i.e. there are three inscriptions on the parchment. About
a tenth of the whole is lost or completely illegible, but part of this
may be restored from Justinian's Institutes, or from other sources ;
accordingly, of the whole Institutions about one-thirteenth is wanting,
one half of which belongs to the Fourth Book.'
' From the style of the handwriting the MS. is judged to be older
THE LIFE AND WORKS OF GAIUS liii
than Justinian or the sixth century after Christ ; but probably did
not precede that monarch by a long interval.'
' In a year after Niebuhr's discovery the whole text of Gaius had
been copied out by Goeschen and Hollweg, who had been sent to
Verona for that purpose by the Prussian Royal Academy of Sciences,
and in 1820 the first edition was published. In 1874 Studemund
published an apograph or facsimile volume, the fruits of a new
examination of the Veronese MS.; and in 1877 Studemund, with
the assistance of Krueger, published a revised text of Gaius founded
on the apograph.'
' In the text of Gaius, the words or portions of words which are
purely conjectural are denoted by italics. The orthography of the
Veronese MS. is extremely inconstant. Some of these inconstancies
it will be seen are retained : e.g. the spelling oscillates between the
forms praegnas and praegnans, nanctus and nactus, erciscere and
herciscere, prendere and prehendere, diminuere and deminuere,
parentum and parentium, vulgo and volgo, apud and aput, sed and
set, proxumus and proximus, affeetus and adfectus, inponere and
imponere &c. Some irregularities likely to embarrass the reader, e. g.
the substitution of v for b in debitor and probare, the substitution
of b for v in servus and vitium, have been tacitly corrected. The
numeration of the paragraphs was introduced by Goeschen in his
first edition of Gaius, and for convenience of reference has been
retained by all subsequent editors. The rubrics or titles marking
the larger divisions of the subject, with the exception of a few at
the beginning, are not found in the Veronese MS. Those that are
found are supposed not to be the work of Gaius, but of a transcriber.
The remainder are partly taken from the corresponding sections of
Justinian's Institutes, partly invented or adopted from other editors.'
§ 21. The Life and Works of Gaius.
Of the life of Gaius we know little. Even his full name has been
lost ; for, if ' Gaius ' is the familiar Roman praenomen *, he must have
had a family or gentile name as well. It is probable that he was a
foreigner by birth — a Greek or a Hellenised Asiatic ; but it is also
probable that he was a Roman citizen, and possible that he taught at
Rome. It is not likely that he belonged to the class of patented
jurisconsults ; for his opinions are not quoted by the subsequent
jurists whose fragments are preserved in the Digest ; it has even been
1 It is a curious fact th&t Gaios (rdi'os) is found as the name of an Asiatic
(Gaios, son of Hermaeus, one of the avvrpwpoi of Mithridates Eupator, King of
Pontus. See Delian inscription in Th. Reinach, Mithridate Eupator, roi du Pont,
p. 52, and Plut. Pomp. 42). Yet, if Gaius the jurist was a Roman citizen, we
should have expected him to bear a Roman, or Romanised, name.
liv HISTORICAL INTRODUCTION
inferred that he was not a practising lawyer ; for amidst his
voluminous writings there is no trace of any work on Quaestiones.
His treatises may all have been of a professorial kind. They
included, beside the Institutions, Commentaries on the Provincial
Edict and the Urban Edict ; a work on the Lex Julia et Papia
Poppaea ; a Commentary on the Twelve Tables ; a book called Aurea or
Ees Quotidianae, treating of legal doctrines of general application and
utility in every-day life ; a book on Cases (apparently of a hypothetical
character) ; one on Kules of Law (Eegulae) ; and special treatises on
Verbal Obligations, Manumissions, Fideicommissa, Dowries, and
Hypotheca. He also wrote on the Tertullian and Orphitian Senatus-
consults. Gaius's Commentary on the Provincial Edict is the only
work of the kind known to us. It is not necessary to believe that
this Provincial Edict was the edict of the particular province
(perhaps Asia) of which he was a native. It may have been a
redaction of the elements common to all Provincial Edicts l.
The value attached to Gaius's powers of theoretical exposition,
and to the admirable clearness and method which made his Insti-
tutions the basis of all future teaching in Roman law, must have
been great ; for, in spite of the fact that he was not a patented juris-
consult, he appears by the side of Papinian, Paulus, Ulpian, and
Modestinus, in the ' Law of Citations ' issued by Theodosius II and
Valentinian III in 426 A. D. The beginning of this enactment runs 2 :
' We accord our approval to all the writings of Papinian, Paulus,
Gaius, Ulpian, and Modestinus, granting to Gaius the same authority
that is enjoyed by Paulus, Ulpian and the others, and sanctioning
the citation of all his works.'
Although so little is known of Gaius, yet his date can be approxi-
mately determined from the internal evidence of his works. ' We
know that he flourished under the Emperors Hadrian (117-138 A.D.),
Antoninus Pius (138-161 A. D.) and Marcus Aurelius Antoninus
(161-180 A. D.). Gaius himself mentions that he was a contemporary
of Hadrian, Dig. 34, 5, 7 pr. He apparently wrote the First Book
of his Institutions under Antoninus Pius, whom he mentions, § 53,
§ 74, § 102, without the epithet Divus (of divine or venerable memory),
a term only applied to emperors after their decease, but in the
Second Book. § 195, with this epithet. The Antoninus mentioned,
§ 126, is either Pius or Marcus Aurelius Philosophus. Respecting
the rules of Cretio, 2. § 177 Gaius appears not to be cognizant of
a Constitution of Marcus Aurelius mentioned by Ulpian, 22, 34.
That he survived to the time of Commodus appears from his having
written a treatise on the Sc. Orphitianum (178 A. D.), an enactment
1 Cf. p. xxxiii and p. xlvii, note 2. 2 Cod. Theod. 1. 4. 3.
THE LIFE AND WORKS OF GAIUS Iv
passed under that emperor' during his joint rule with his father
Marcus Aurelius (177-180 A.D.). This is the latest date which is
traceable in the life of Gaius.
Gaius was thus an elder contemporary of Papinian, who had
already entered active life in the reign of Marcus Aurelius ; and he
stands at the threshold of that brilliant period of the close of Eoman
Jurisprudence which contains the names of Scaevola, Papinian,
Ulpian and Paulus, and extends from the reign of Marcus Aurelius
to that of Severus Alexander (180-235 A.D.).
COMMENTAKIVS PRIMVS
DE IVRE
[l. DE IVBE CIVILI ET
NATVRALI.]
§ 1. Omnes populi quilegibus
et moribus reguntur partim
KUO proprio, partim, communi
omnium hominum iure utun-
tur; nam quod quis\que popu-
lus ipse sibi ius constituit, id
ipsius proprium est uocaturque
ius ciuile, quasi ius proprium
ciuitatia; quod uero naturalis
ratio inter omnes homines con-
stituit, id apud omnes populos
peraeque custoditur uocaturque
ius gentium, quasi quo iure
omnes gentes utuntur. populus
itaque Romanus partim suo pro-
prio, partim communi omnium
hominum iure utitur. quae
singula qualia sint, suis locis
proponemus.
Dig. 1, 1,9 (Gaius), Inst. 1,2,1. :
§ 2. Constant autem jura
populi Romani ex legibus, plebi-
scitis, senatusconsultis, con-
stitutionibus principum, edictis
eorum qui ius edicendi habent,
responsis prudentium.
Inst. ] , 2, 3.
§ 3. .Lex est quod populus
iubet atque constituit. Plebi-
scitum est quod plebs iubet
atque constituit. plebs autem
a populo eo distat, quod populi
appellatione uniuersi ciues sig-
nificantur, connumeratis etmm
patriciis ; plebis autem appella-
tione sine patriciis ceteri ciues
significantur ; unde olim pa-
tricii dicebant plebiscitis se non
teneri, qm'a sine auctoritate
eorum f acta essent ; sed postea
ON CIVIL LAW AND NATURAL
LAW.
§ 1. The laws of every people
governed by statutes and customs
are partly peculiar to itself, partly
common to all mankind. The
rules established by a given state
for its own members are peculiar
to itself, and are called jus civile ;
the rules constituted by natural
reason for all are observed by all
nations alike, and are called jus
gentium. So the laws of the
people of Rome are partly pecu-
liar to itself, partly common to
all nations ; and this distinction
shall be explained in detail in
each place as it occurs.
§ 2, Roman law consists of
statutes, plebiscites, senatuscon-
sults, constitutions of the em-
perors, edicts of magistrates
authorized to issue them, and
opinions of jurists.
§ 3. A statute is a command
and ordinance of the people : a
plebiscite is a command and
ordinance of the commonalty.
The commonalty and the people
are thus distinguished : the people
are all the citizens, including the
patricians ; the commonalty are
all the citizens, except the patri-
cians. Whence in former times
the patricians maintained that
they were not bound by the
plebiscites, as passed without
their authority ; but afterwards
DE IVRE
[r. §§1-7.
a statute called the lex Hortensia
was enacted, which provided that
the plebiscites should bind the
people, and thus plebiscites were
made co-ordinate with statutes.
§ 4. A senatusconsult is a com-
mand and ordinance of the senate,
and has the force of a statute,
a point which was formerly con-
troverted.
§ 5. A constitution is law estab-
lished by the emperor either by
decree, edict, or letter ; and was
always recognized as having the
force of a statute, since it is by a
statute that the emperor himself
acquires supreme executive power.
§ 6. Power to issue edicts is
vested in magistrates of the people
of Eome, the amplest authority
belonging to the edicts of the two
praetors, the home praetor and
the foreign praetor, whose pro-
vincial jurisdiction is vested in
the presidents of the provinces,
and to the edicts of the curule
aediles, whose jurisdiction in the
provinces of the people of Eome
is vested in quaestors : in the
provinces of the emperor no
quaestors are appointed, and in
these provinces, accordingly, the
edict of the aediles is not pub-
lished.
§ 7. The answers of jurists are
the decisions and opinions of
persons authorized to lay down
the law. If they are unanimous
their decision has the force of
law; if they disagree, the judge
may follow whichever opinion he
chooses, as is ruled by a rescript
of the late emperor Hadrian.
lex Hortensia lata est, qua cau-
tum est ut plebiscita uniuer-
sum populum tenerent ; itaque
eo modo legibus exaequata
sunt. Inst. 1 , 2, 4.
§ 4. Senatusconsultum est
quod senatus iubet atque con-
stituit,idque legis uicem optinet,
quamuis fuerit quaesitum.
Inst. 1, 2, 5.
§ 5. Constitutio principis
est quod imperator decreto uel
edicto uel epistula constituit.
nee umquam dubitatum est,
quin id legis uicem optineat,
cum ipse imperator per legem
imperiurn accipiat.
Inst. 1,2, 6; Dig. 1,4,1.
§6. —
ius autem edicendi habent
magistratus populi Romani ;
sed amplissimum ius est in
edictis duorum praetorutn,
urban! et peregrin!, quorum in
prouinciis iurisdictionem prae-
sides earum habent ; item in
edictis aedilium curulium,
quorum iurisdictionem in pro-
uinciis populi Romani quae-
stores habent ; nam in pro-
uincias Caesaris omnino quae-
stores non mittuntur, et ob id
hoc edictum in his prouinciis
non proponitur. Inst. 1, 2, 7.
§ 7. Responsa prudentium
sunt sententiae et opiniones
eorum quibus permissum est
iura condere. quorum omnium
si in unum sententiae concur-
runt, id quod ita sentiunt legis
uicem optinet; si uero dis-
sentiunt, iudici licet quam ue£it
sententiam sequi ; idque re-
scripto diui Hadrian i signifi-
catur. Inst. 1,2, 8.
§ 1. Jurisprudence treats exclusively of positive law: the ex-
clusive origin of positive law is some positive enactment ; the term
positive enactment including both the express or direct enactments
i. S& 1-7.1 DE IVRE GENTIVM ET CIVILI 3
3 3 J
of the political sovereign, and the implied, indirect, circuitous enact-
ments imported by the sovereign's acquiescence in the ruling of
subordinate authorities. (See Holland's Jurisprudence, chs. 2-5.)
The rules and principles denoted by the terms praetor-made law,
jurist-made law, judge-made law, are only law because they are
impliedly adopted, confirmed, and ratified by the silent acquiescence
of the sovereign.
The organ by which the jus gentium of the Eomans was pro-
mulgated, which made it by indirect enactment a portion of Komaii
Positive law, was principally the Edict 'of the Praetor. The rela-
tions of Eoman citizens with aliens (peregrini), that is, with the
members of foreign states formerly subjugated by Rome and now
living under the protection of Roman law, as well as of aliens in
their intercourse with one another, became, about 242 B.C., so
frequent as to be made subject to the jurisdiction of a special
minister of justice called Praetor peregrinus, who, like the Praetor
urbanus, published an annual edict announcing the principles on
which justice would be administered. These principles composed
jus gentium as opposed to jus civium. Jus gentium, that is to say,
was not really, as Roman jurists imagined or represented, a collec-
tion of the principles common to the legislation of all nations, but
a body of rules which the Roman praetor thought worthy to govern
the intercourse of Roman citizens with the members of all, originally
independent, but now subject, foreign nations.
Gradually the rules originating in this way were extended to the
intercourse of citizens with citizens, in cases where the rigorous
conditions of jus civile were not exactly satisfied, and so precepts
of jus gentium were transferred from the edict of praetor peregrinus
to the edict of praetor urbanus.
The portion of the edict most fertile in principles of jus gentium
would be the clauses in which the praetor announced, as he did
in some cases, that he would instruct the judex, whom he appointed
to hear and determine a controversy, to govern himself by a con-
sideration of what was aequum et bonum, i. e. by his views of
equity and expediency : and if any of the oral formularies of the
earliest system of procedure (legis actiones) contained these or
equivalent terms, such formularies may be regarded as a source
of jus gentium. It may be observed that Gaius does not, like
some other Roman jurists and notably Ulpian (cf. Dig. 1, 1, 1, 3 ;
Inst. 1, 2 pr.), make any distinction between jus gentium and jus
naturale. There is nothing in his writings, as they have come
down to us, to draw attention to the fact that the teaching of
nature may not be in accordance with the practice of nations, as
the institution of slavery showed.
B a
4 DE IVRE [i. §§ 1-7.
Another organ of quasi publication, whereby the rules of jus
gentium were transformed from ideal law to positive law — from
laws of Utopia to laws of Home — were the writings of the jurists,
who, at first with the tacit, afterwards with the express permission
of the legislature, engaged, nominally in interpreting, really in
extending the law, about the time of Cicero (De Legibus, § 1, 5),
transferred to the edict of the praetor the activity which they had
formerly displayed in developing the law of the Twelve Tables and
the statutes of the Comitia. By these means, supplemented and
confirmed by statute law and custom, the jus gentium gradually
increased in importance, and gave the Roman empire its universal
law.
Jus civile, i. e. jus eivium or law peculiar to citizens, was the law
of the Twelve Tables, augmented by subsequent legislation, by juristic
interpretation, and by consuetudinary law. The institutions of jus
civile may be exemplified by such titles to property as Mancipatio
and In Jure Cessio, contracts by the form of Nexum and Sponsio,
title to intestate succession by Agnatio or civil relationship ; while
corresponding institutions of jus gentium were the acquisition of
property by Tradition, contract by Stipulation without the solemn
term Spondeo, title to intestate succession by Cognatio or natural
relationship. Other departments of life were not subject to parallel
institutes of jus civile and jus gentium, but the mutual relations of
citizens with citizens as well as of citizens with aliens were exclu-
sively controlled by jus gentium : e. g. the informal contracts called
Consensual, such as buying and selling, letting and hiring, partner-
ship ; and the informal contracts called Real, such as the contract of
loan for use or loan for consumption.
Titles to ownership (jus in rem), according to jus gentium, which
ultimately superseded civil titles, are explained at large in Book II.
In respect of Obligation (jus in personam), jus gentium may be
divided into two classes, according to the degree in which it was
recognized by Civil law : —
A. A portion of jus gentium was recognized as a ground of
Action. To this class belong (1) the simple or Formless contracts
to which we have alluded. (2) obligations to indemnify grounded
on delict, (3) rights quasi ex contractu to recover property when it
has been lost by one side and gained by the other without any right
to retain it. Dig. 12, 6, 14 and Dig. 25, 2, 25. Actions founded on
this obligation to restore (condictiones), although it was a species of
naturalis obligatio, Dig. 12, 6, 15 pr., were as rigorous (stricti juris)
as any in the Civil code. In these cases the obligalio, though
naturalis as founded in jus gentium, yet, as actionable, was said
to be civilis obligatio, not naturalis, Dig. 19, 5, 5, 1.
1. §§ 1-7.] DE IVRE GENTIVM ET CIVILI 5
The two eminently Civil spheres of the law of obligation were
(1) specialty or Formal contracts, and (2) penal suits. Yet even
into these provinces jus gentium forced a partial entrance. We
shall see that aliens could be parties to a Stipulatio or Verbal
contract, though not by the Civil formulary, Spondeo 3 § 93 ; and
to Transcriptio, at least of one kind, 3 § 133, which was a form
of Literal contract ; and could be made plaintiffs or defendants in
penal suits by means of the employment of certain Fictions, 4 § 37.
This, however, was rather the extension of jus civile to aliens than
the intrusion of jus gentium into a Civil province.
B. Other rights and obligations of jus gentium were not admitted
as direct grounds for maintaining an action, yet were otherwise
noticed by the institutes of civil jurisprudence and indirectly
enforced. Thus a merely naturalis obligatio, though not actionable,
might (1) furnish a ground of an equitable defence (exceptio) :
for instance, on payment of a merely natural debt the receiver has
a right of retention, and can bar the suit to recover it back as a
payment made in error (condictio indebiti soluti) by pleading the
naturalis obligatio, Dig. 12, 6, 64; or the defendant can meet a
claim by Compensatio, 4 § 61, cross demand or set-off, of a debt
that rests on merely naturalis obligatio, Dig. 40, 7f 20, 2 ; or a
merely naturalis obligatio might (2) form the basis of an accessory
obligation, such as Suretyship (fidejussio) 3 § 119 a, or Guaranty
(constitutum) Dig. 13, 5, 1, 7, or Mortgage (pignus) Dig. 20, 1, 5 pr.,
or Novation, 3 § 176, Dig. 46, 2, 1, 1, all institutions, which are
themselves direct grounds of action. Though these rights and
obligations of natural law are imperfect (obligatio tantum naturalis)
as not furnishing immediate grounds of action, yet, as being partially
and indirectly enforced by Roman tribunals, they clearly compose
a portion of Positive law. Cf. 3 §§ 88, 89 comm.
§ 3. Plebiscites as well as the enactments of the Comitia populi
were called Leges, and were named after the tribunes by whom they
were carried, as the leges proper (rarely called populiscita) were
named after the consul, praetor or dictator by whom they were
carried. Thus Lex Canuleia, Lex Aquilia, 3 § 210, Lex Atinia, Inst.
2, 6, 2, Lex Furia testamentaria, 2 § 225, were plebiscites named
after tribunes, while the Lex Valeria Horatia was named after two
consuls, the Lex Publilia and Lex Hortensia were named after
dictators, the Lex Aurelia, 70 B. c., after a praetor. (As to the
history of plebiscita and leges and of the other sources of Eoman
law cf. Historical Introduction and see Smith's Diet, of Greek and
Roman Antiquities, 3rd ed. s. v.)
§ 4. The legislative power of the senate was in the time of the
republic a matter of controversy. It is certain that it had a power
6 DE IVRE [i. §§1-7.
of issuing certain administrative decrees or instructions to magistrates
that was hardly distinguishable from legislation. Under the
emperors matters were changed. Legislation by the Comitia,
though spoken of by Gaius in the present tense, had ceased to be
a reality after the time of Tiberius, and the last recorded lex was
passed in the reign of Nerva. As early as the time of Augustus the
auctoritas of the senate began to be regarded as the essential process
in making a law, and the subsequent rogatio of the Comitia as a
mere formality, which was finally omitted. Senatusconsults, like
laws, were sometimes named after the consuls who proposed them,
though this is not in their case an official designation ; they are
sometimes even called leges : thus the measure which Gaius calls
Sc. Claudianum, § 84, is subsequently referred to by him under the
name of lex, § 157, 4 §§ 85, 86. Ulpian says, Non ambigitur senatum
jus facere posse. Dig. 1, 3, 9. Of course, these senatusconsults were
merely a disguised form of imperial constitution. The sovereignty
had in fact passed from both patricians and plebeians to the hands
of the princeps. A measure was recommended by the emperor in an
oratio or epistola to the senate, and then proposed by the consul
who convoked the senate, and voted by the senate without opposi-
tion. Hence a senatusconsult is sometimes called oratio, e. g. oratio
divi Marci, Dig. 2, 12, 1 pr. Even this form was finally disused.
No senatusconsult relating to matters of civil law occurs after the
time of Septimius Severus.
§ 5. Although when Gaius wrote the emperor had not yet acquired
the formal right of making statutes, his supreme executive power
enabled him to give to his constitutions the same force as if they
had been leges. The legal origin and character of the different
forms of imperial constitution has been much controverted, and
certainly varied at different periods.
Edicts were legislative ordinances issued by the emperor in virtue
of the jurisdiction appertaining to him as highest magistrate, and
were analogous to the edicts of the praetors and aediles. In the
time of Gaius they had only binding force during the life of the
emperor who issued them, requiring the confirmation of his successor
for their continuing validity ; but from the reign of Diocletian,
when the empire assumed an autocratic form, their duration ceased
to be thus limited.
Deere ta were judicial decisions made by the emperor as the
highest appellate tribunal: or in virtue of his magisterial juris-
diction, and analogous to the extraordinaria cognitio of the
praetor.
Epistolae or reseripta were answers to inquiries addressed to the
emperor by private parties or by judges. They may be regarded as
i. §§ 1-7.] DE IVRE GENTIVM ET CIVILI 7
interpretations of law by the emperor as the most authoritative
juris peritus. Cf. § 94 comm.
Some examples of direct legal changes made by early emperors
are recorded, as the right conferred by the edict of Claudius men-
tioned in § 32 c of this book.
The words of Gaius explaining why constitutions had the force of
law seem to be imperfect, and may be supplemented from Justinian,
who openly asserts for himself absolute authority : Sed et quod
principi placuit legis habet vigorem : cum lege regia, quae de imperio
ejus lata est, populus ei et in eum ornne suum imperium et potestatem
concessit, Inst. 1, 2, 6. The lex imperii, Cod. 6, 23, 6, was called in
this and in the corresponding passage of the Digest (1, 4, 1) attributed
to Ulpian, lex regia, in memory of the lex curiata, whereby the kings
were invested with regal power. According to Cicero the king was
proposed by the senate and elected by the Comitia Curiata, and the
election was ratified in a second assembly presided over by the king ;
e. g. Numam Pompilium regem, patribus auctoribus, sibi ipse populus
adscivit, qui ut hue venit, quanquam populus curiatis eum comitiis
regem esse jusserat, tamen ipse de suo imperio curiatam legem tulit,
De Eepubl. 2, 13, According to Mommsen and other modern
writers, however, the later Koman idea, that the king was elected
by the Comitia, is wrong, the lex curiata having been passed, not to
elect a king, but merely to ratify a previous election or nomination.
A lex curiata was also passed to confer on a Eoman magistratus his
imperium, and similarly the Koman emperor derived some of his
powers from leges, but it seems a mistake to suppose that in the
time of the principate a single lex gave him his entire authority.
A fragment of a bronze tablet, on which was inscribed the lex
investing Vespasian with sovereign powers, was discovered at Kome
in the fourteenth century, and is still preserved in the Capitol.
§ 6. Huschke points out that the vacant space in the MS. before
jus probably contained a definition of Edicta.
All the higher magistrates of Kome were accustomed to issue edicts
or proclamations. Thus the consuls convoked the comitia, the army,
the senate, by edict : the censors proclaimed the approaching census
by edict : the aediles issued regulations for the market by edict :
and magistrates with jurisdiction published edicts announcing the
rules they would observe in the administration of justice, the
Edicts of the Praetor urbanus, Praetor peregrinus, Aediles curules
being called Edicta urbana, while the Edicts of the governors
of provinces were called Edicta provincialia. These edicts, besides
being orally proclaimed, were written on white tablets (in albo)
and suspended in the forum : apud forum palam ubi de piano
legi possit, Probus, ' in the forum in an open space where persons
8 DE IVRE [i. §§ 1-7.
standing on the ground may read.' Such an edict was always
published on entering on office (est enim tibi jam, cum magistratum
inieris et in concionem adscenderis, edicendum quae sis observaturus
in jure dicendo, Cic. De Fin. 2, 22), and was then called Edictum
perpetuum, as opposed to occasional proclamations^ Edictum repen-
tinum. A clause (pars, caput, clausula, edictum) retained from a
former edict was called Edictum tralaticium, Gellius, 3, 18 ; and
though doubtless the edicts gradually changed according to changing
emergencies, each succeeding praetor with very slight modifications
substantially reproduced the edict of his predecessor. In the reign
of Hadrian the jurist Salvius Julianus, called by Justinian Prae-
toriani edicti ordinator, reduced the edict to its definite form, and
if the yearly publication was not discontinued (cf. § 6, jus edicendi
habent), at all events Julian's co-ordination of Praetorian law was
embodied in all subsequent publications. Such was the origin of
jus honorarium (praetorium, aedilicium), as opposed to jus civile :
and from what has preceded, it need hardly be stated that the
antithesis, jus civile, jus honorarium, is to a great extent coincident
with the antithesis, jus civile, jus gentium.
It may be observed that Gaius does not attribute to edicts the
force of a statute: and this theoretical inferiority of jus hono-
rarium had a vast influence in modelling the forms and proceedings
of Koman jurisprudence^ The remedy or redress administered to
a plaintiff who based his claim on jus civile differed from that
administered on an appeal to jus honorarium, as we shall see when
we come to treat of Bonitary ownership, Bonorum possessio, Actio
utilis, in factum, ficticia. This difference of remedy preserved jus
civile pure and uncontaminated, or at least distinguishable from jus
honorarium j but this perpetuation of the memory of the various
origins of the law, like the analogous distinction of Equity and
Common law in English jurisprudence, was purchased by sacrificing
simplicity of rule and uniformity of process.
The legislative power of the popular assembly and the absence
of legislative power in the senate and praetor were marked by a
difference of style in the lex and plebiscite, edict, and decree of
the senate: while the lex and plebiscite employed the imperative
(damnas esto, jus potestasque esto, &c.), the resolutions of the senate
scrupulously avoid the imperative and are clothed in the forms
placere, censere, arbitrari, &c., as if they were rather recommen-
dations than commands : and the edicts and the interdicts of the
praetor are couched in the subjunctive (Exhibeas, Kestituas, &c.), a
milder form of imperative. Or to show that their force and opera-
tion is limited to his own tenure of office, they are expressed in the
first person (actionem dabo, ratum habebo, vim fieri veto). Where
I. §§ 1-7.] DE IVRE GENTIVM ET CIVILI 9
he has authority to command he shows it by using the imperative,
as in addressing the litigants (mittite ambo hominem, inite viam,
redite, 4 § 13 comm.) or the judge (judex esto, condemnato, absolvito).
Ihering, § 47.
In the first period of the empire, that is, in the first three
centuries of our era, it was the policy of the emperors to maintain
a certain show of republican institutions, and the administration
of the empire was nominally divided between the princeps or
emperor and the people as represented by the senate. Thus, at
Rome there were two sets of magistrates, the old republican
magistrates with little real power, consuls, praetors, tribunes,
quaestors, in outward form elected by the people ; and the imperial
nominees with much greater real authority, under the name of
praefecti, the praefectus urbi, praefectus praetorio, praefectus vigilum,
praefectus annonae, praefectus aerario ; for though nominally the
people and princeps had their separate treasuries under the name of
aerarium and fiscus, yet the treasury of the people was not managed
by quaestors as in the time of the republic, but by an official
appointed by the emperor. Similarly the provinces were divided
between the people and the prince, the people administering those
which were peaceful and unwarlike, the prince those which required
the presence of an army. The governor of a province, whether of
the people or the emperor, was called Praeses Provinciae. The
Praeses of a popular province was a Proconsul, and the chief sub-
ordinate functionaries were Legati, to whom was delegated the civil
jurisdiction, and quaestors, who exercised a jurisdiction corresponding
to that of the aediles in Rome. The emperor himself was in theory
the Proconsul of an imperial province ; but the actual governor,
co-ordinate with the Proconsul of a senatorial province, was the
Legatus Caesaris, while the financial administration and fiscal juris-
diction were committed to a functionary called Procurator Caesaris,
instead of the republican Quaestor. Sometimes the same person
united the office of Procurator and Legatus, as, for instance, Pontius
Pilate.
§ 7. The opinions of a jurist had originally only the weight that
was due to his knowledge and genius ; but on the transfer of power
from the hands of the people to those of the princeps, the latter
recognized the expediency of being able to direct and inspire the
oracles of jurisprudence ; and accordingly Augustus converted the
profession of jurist into a sort of public function, giving the decisions
of certain authorized jurists the force of law, Pomponius in Dig. 1, 2, 49
(cf. Inst. 1, 2, 8). ' Until Augustus, the public decision of legal
questions was not a right conferred by imperial grant, but any one
who relied on his knowledge advised the clients who chose to
10 DE IVRE [i. §§ 1-7.
consult him. Nor were legal opinions always given in a letter
closed and sealed, but were generally laid before the judge in
the writing or by the attestation of one of the suitors. Augustus,
in order to increase their weight, enacted that they should be
clothed with his authority, and henceforth this office was sought for
as a privilege.' Those jurists who had the jus respondendi were
called juris auctores. Their auctoritas resided, in the first instance,
in their responsa, or the written opinions they gave when consulted
on a single case ; but in the second instance, doubtless, in their
writings (sententiae et opiniones), which were mainly a compila-
tion of their responsa, a fact which has left its traces in the
disjointed and incoherent style which disagreeably characterizes
Eoman juristic literature. The jus respondendi instituted by
Augustus and regulated by Tiberius, who themselves held the office
of Pontifex Maximus, gave those to whom it belonged similar
authority in interpreting law as had previously been exercised by
the College of Pontifices — 'omnium tamen harum et interpretandi
scientia et actiones apud Collegium Pontificum erant, ex quibus
constituebatur, quis quoque anno praeesset privatis ' (Pomponius in
Dig. 1, 2, 6 ; cf. Sohm, § 18).
As to the mode of collecting the opinions of the juris auctores
no precise information has come down to us, but § 6 shows that the
duty of the judex, in the not uncommon event of the authorities
differing in their opinions on a case, was open to doubt, till Hadrian's
rescript allowed him under these circumstances to adopt the opinion
he preferred. It may be gathered from the words ' quorum omnium '
that all authorized jurists had to be consulted. The jus respondendi,
as thus explained, may have continued in existence till the end of
the third century, by which time the originative force of Eoman
jurisprudence had ceased. Instead of giving independent opinions
jurists had become officials of the emperor, advising him in drawing
rescripts and other affairs of imperial government. Legal authority
rested in the writings of deceased juris auctores. (For a discussion
of the causes of the decline of Roman Jurisprudence see Grueber's
Art. in Law Quarterly Review, vii. 70.) In the course of centuries
the accumulation of juristic writings of co-ordinate authority was
a serious embarrassment to the tribunals. To remedy this evil,
A. D. 426, Valentinian III enacted what is called the law of citations,
Cod. Theodosianus, 1, 4, 3, limiting legal authority to the opinions
of five jurists, Gaius, Papinian, Ulpian, Paulus, Modestinus, and of
any other jurists whom these writers quoted, provided that such
quotations should be verified by reference to the original writings of
these jurists (codicum collatione firmentur — on the question of the
way of interpreting these words cf. Sohm, p. 122, n. 1, § 21). In case
i. §§1-7.] DE IVRE GENTIVM ET CIVILI 11
of a divergence of opinion, the authorities were to be counted, and the
majority was to prevail. In case of an equal division of authorities,
the voice of Papinian was to prevail. A. D. 533, Justinian published
his Digest or Pandects, a compilation of extracts from the writings
of the jurists, to which, subject to such modifications as his com-
missioners had made in them, he gives legislative authority. Every
extract, accordingly, is called a lex, and the remainder of the writings
of the jurists is pronounced to be absolutely void of authority. To
prevent the recurrence of the evil which his codification was in-
tended to remove, and confident in the lucidity and adequacy of his
Digest and Code, which latter is a compilation of imperial statute law
after the model of the Theodosian code, Justinian prohibits for the
future the composition of any juristic treatise or commentary on the
laws. If any one should disregard the prohibition, the books are to
be destroyed and the author punished as guilty of forgery '(falsitas),
Cod. 1 , 1 7, 2, 2 1. The constitutions enacted by Justinian subsequent to
the publication of his code are called Novellae, Constitutiones or Novels.
We shall find frequent allusions, as we proceed in this treatise,
to the existence of rival schools among the Roman juris auctores.
This divergence of the schools dates from the first elevation of the
jurist to a species of public functionary, namely, from the reign of
Augustus, in whose time, as we have seen, certain jurists began to
be invested by imperial diploma with a public authority. In his
reign the rival oracles were M. Antistius Labeo and C. Ateius
Capito : Hi duo primum veluti diversas sectas fecerunt, Dig. 1, 2, 47.
' The first founders of the two opposing sects.' From Labeo's works
there are 61 extracts in the Digest, and Labeo is cited as an authority
in the extracts from other jurists oftener than any one else except
Salvius Julianus. From Sempronius Proculus, a disciple of Labeo,
and of whom 37 fragments are preserved in the Digest, the school
derived its name of Proculianj. Other noted jurists of this school
were Pegasus, in the time of Vespasian ; Celsus, in the time of
Domitian, who gave rise to the proverb, responsio Celsina, a dis-
courteous answer, and of whom 141 fragments are preserved ; and
Neratius, of whom 63 fragments are preserved. To the other school
belonged Masurius Sabinus, who flourished under Tiberius and
Nero, and from whom the sect were called Sabiniani. To the same
school belonged Caius Cassius Longinus, who flourished under Nero
and Vespasian, and from whom the sect are sometimes called
Cassiani : Javolenus Priscus, of whom 206 fragments are preserved :
Salvius Julianus, the famous Julian, above mentioned, of whom
456 fragments are preserved : Pomponius, of whom 578 fragments
are preserved : Sextus Caecilius Africanus, celebrated for his ob-
scurity, so that Africani lex in the language of lawyers meant lex
12 DE IVRE [i. §§ 1-7.
difficilis, of whom 131 fragments are preserved: and, lastly, our
author, Gaius, who flourished under Hadrian, Antoninus Pius, and
Marcus Aurelius, and from whose writings 535 extracts are to be
found in the Digest.
If we now inquire whether this divergence of schools was based
on any difference of principle, the answer is, No : on none, at least,
that modern commentators have succeeded in discovering: it was
merely a difference on a multitude of isolated points of detail. We
are told indeed that the founders were men of dissimilar characters
and intellectual dispositions : that Labeo was characterized by bold-
ness of logic and a spirit of innovation ; while Capito rested on
tradition and authority, and inclined to conservatism, Dig. 1, 2, 47 ;
but it is altogether impossible to trace their opposing tendencies in
the writings of their successors : and we must suppose that the
intellectual impulse given by Labeo was communicated to the fol-
lowers of both schools of jurisprudence. But though, as we have
stated, no difference of principle was involved, each school was
accustomed to follow its leaders or teachers (praeceptores) with much
servility ; and it is quite an exception to find, on a certain question,
Cassius, a member of the Sabinian school, following the opinion of
Labeo ; while Proculus, who gave his name to Labeo's school, pre-
ferred the opinion of Ofilius, the teacher of Capito, 3 § 140 ; Gaius
too, who was a Sabinian, sometimes inclines to the opinion of
the rival school ; cf. 3, § 98. Controversies between the two schools
are referred to by Gaius in the following passages of his Institutes :
1, 196; 2, 15, 37, 79, 123, 195, 200, 216-222, 231, 244; 3, 87, 98,
103, 141, 167-8, 177-8; 4, 78-9, 114, 170.
As long as these schools of law, which may have derived their
constitution from the Greek schools of philosophy, existed, the office
of President appears to have devolved by succession from one jurist
to another. (For an account of this subject and references to the
chief modern writers who have discussed it see Sohm, pp. 98, &c.)
We may briefly mention some of the most illustrious jurists who
flourished somewhat later than Gaius. Aemilius Papinianus, who
was probably a Syrian, lived in the time of Septimius Severus, and
was murdered by the order of Caracalla: 601 extracts from his
writings are contained in the Digest. It was perhaps to some
extent due to the transcendent genius, or at least to the extra-
ordinaiy reputation, of Papinian, which made him seem too great
to be reckoned any man's follower, that we cease about his time to
hear of opposing schools of jurisprudence. Papinian appears to have
accompanied Severus to York, fulfilling the important function of
praefectus praetorio, so that England may claim some slight con-
nexion with the brightest luminary of Roman law.
i. §8.] DE I VRIS DIVISIONS 13
A disciple and colleague of Papinian, of Syrian origin, who like-
wise became praefectus praetorio, was Domitius Ulpianus, murdered
by the praetorian soldiery, whose domination he resisted, in the
presence of the Emperor Alexander Severus : 2464 fragments, com-
posing about a third of the whole Digest, are taken from his
writings. An epitome of his Liber Singularis Eegularum is still
extant in a manuscript of the Vatican Library, and is the work
referred to when, without mentioning the Digest, we cite the
authority of Ulpian.
Another disciple and colleague of Papinian was Julius Paulus, of
whose writings 2081 fragments are preserved in the Digest, forming
about a sixth of its mass. An epitome of his treatise called
Sententiae Keceptae is found, with the Epitome of Gaius, in the
code of Alaric II, king of the Visigoths ; and it is to this book that
we refer when we simply cite the authority of Paulus.
A disciple of Ulpian's was Herennius Modestinus, of whom 344
extracts are contained in the Digest. After Modestinus the lustre of
Roman jurisprudence began to decline. (For a detailed account of the
Roman jurists, see Roby's Introduction to the Digest, chs. vi-xvi.)
Besides the sources of law enumerated by Gaius, the Institutes
of Justinian (1, 2, 9 and 10) mention Custom or Usage, the source of
consuetudinary or customary law (jus non scriptum, consensu
receptum, moribus introductum). To this branch of law are
referred, with other rules, the invalidity of donations between
husband and wife, Dig. 24, 1, 1, the power of a paterfamilias to
make a will for his filiusfamilias who dies before the age of puberty
(pupillaris substitutio), Dig. 28, 6, 2 pr., and universal succession in
Coemption and Adrogation, 3 § 82. See also 4 §§ 26, 27. We may
suppose that Customary law, like Roman law in general, would fall
into two divisions, jus civile and jus gentium, the former embracing
what Roman writers sometimes speak of as mores majorum. Before
the time of Gaius, however, most of Customary law must have been
incorporated by statute, as in early times by the law of the Twelve
Tables, or taken up into the edict of the praetor or the writings of the
jurists, Cic. De Invent. 2, 22, 67; i. e. unwritten law must have
changed its character and have been transformed into written law.
[ll. DE IVRIS DI VISION E.] ON THE BRANCHES OF THE LAW.
§ 8. Omne autem ius quo § 8. The whole of the law by
utimur uel ad personas pertinet which we are governed relates
uel ad res uel ad actiones. ei, either to persons, or to things,
prius uideamus de personis. or to actions ; and let us first
Inst. 1, 2, 12 : Gaius in Dig. 1, examine the law of persons.
5,1.
§ 8. What are the leading divisions of law — what are the main
14 DE IVRE [i. § 8.
masses into which legislation naturally breaks itself — what are the
joints and articulations which separate the whole code into various
subordinate codes, like the different limbs and members of an
organic whole — what is the import of the Gaian division, adopted
perhaps from previous writers, into jus personarum, jus rerum, jus
actionum, or rather, to adhere to the classical phrases, jus ad per-
sonas pertinens, jus ad res pertinens, jus ad actiones pertinens ?
By jus ad actiones pertinens, to begin with the easier part of the
problem, there is no doubt that the inventor of the division intended
to designate the law of PROCEDURE as opposed to the law of
rights ; the adjective code, to use Bentham's phraseology, as opposed
to the substantive code. There is as little doubt that in the Institu-
tions of Gaius this design is not executed with precision, and that,
instead of the law of procedure, the last portion of his treatise
contains also to some extent the law of sanctioning rights, as opposed
to the law of primary rights. (For the meaning of this distinction
see Austin's Jurisprudence, bk. i.) Or perhaps we should say that
the legislative provisions respecting Procedure have a double aspect :
a purely formal aspect, so far as they give regularity and method
to the enforcement of sanctioning rights ; and a material aspect,
so far as certain stages of procedure (e.g. litis contestatio and res
judicata) operate like Dispositions or any other Titles to modify
the substantive rights of the contending parties. Procedure, then,
is treated of in these Institutions partly indeed in its formal
character, but still more in its material character, i.e. so far as its
incidents can be regarded as belonging to the substantive code.
It is more difficult to determine the principle of the other division,
the relation of the law of Persons to the law of Things. They both
deal with the rights and duties of persons in the ordinary modern
acceptation of the word ; why then, we may inquire, are certain
rights and duties of persons separated from the rest and dealt with
under the distinguishing category of jura personarum? It is not
enough to say with Austin that the law of Things is the universal
or general portion of the law, the law of Persons a particular and
exceptional branch ; that it is treated separately on account of no
essential or characteristic difference, but merely because it is com-
modious to treat separately what is special and exceptional from
what is general and universal. This answer furnishes no positive
character of the law of Persons, but only the negative character
of anomaly, i. e. of unlikeness to the larger portion of the law ;
but it would be difficult to show that the law of Persons is more
exceptional, anomalous, eccentric, than the Civil dispositions as
opposed to the Natural dispositions of the law of Things.
We must look to the details of the law of Persons, and observe
i. § 8.] DE IVBJS DIVISIONE 15
whether its dispositions have any common character as contrasted
with the dispositions of the law of Things. The law of Persons,
in other words, the law of Status, classifies men as slaves and free,
as citizens (privileged) and aliens (unprivileged), as paterfamilias
(superior) and filiusfamilias (dependent). The law of Things looks
at men as playing the parts of contractors or of neighbouring
proprietors ; in other words, the law of Persons considers men as
UNEQUALS, the law of Things considers them as EQUALS : the
one may be defined as the law of relations of inequality, the other as
the law of relations of equality.
It may induce us to believe that the law of unequal relations
and the law of equal relations is a fundamental division of the
general code, if we consider how essential are the ideas of equality
and inequality to the fundamental conception of law. If we ventured
on a Platonic myth, we might say that Zeus, wishing to confer the
greatest possible gift on the human race, took the most opposite
and uncombinable things in the universe, Equality and Inequality,
and, welding them together indissolubly, called the product by the
name of political society or positive law.
The assumption will hardly be controverted, that in the relations
of subject to subject, Positive law, like Ethical law, recognizes, as
an ideal at least, the identity of the just (lawful) with the equal.
Inequality, however, is no less essentially involved in positive law.
We have seen that there is no right and no duty by positive law
without a legislator and sovereign to whom the person owing the
duty is in subjection. On the one side weakness, on the other
irresistible power. Positive rights and duties, then, imply both
the relation of subject to subject and the relation of subject to
sovereign or wielder of the sanction, in other words, both the relation
of equal to equal and the relation of unequal to unequal. It is the
more surprising that Austin should apparently have failed to seize
with precision this conception of the law of Persons, as he makes
the remark, in which the whole truth seems implicitly contained,
that the bulk of the law of Persons composes the Public, Political,
or Constitutional code (jus publicum). Political society or govern-
ment essentially implies subordination. It implies, on the one hand,
sovereign power reposing in various legislative bodies, distributed,
delegated, and vested in various corporations, magistrates, judges,
and other functionaries ; on the other hand, private persons or
subjects subordinate to the sovereign power and to its delegates and
ministers. The different forms of government are so many forms
of subordination, so many relations of superior and inferior, that is,
so many relations of unequals. Public law, then, is a law of Status,
and the law of Persons or law of Status in the private code is the
16 DE IVKE [i. § 8.
intrusion of a portion of the public code into the private code ; or,
in barbarous and semi-civilized legislations, the disfigurement of
private law by the introduction of relations that properly belong
to public law. For instance, the most salient institution of the
ancient Eoman law of Persons, the power of life and death over
wife and child that vested in the father of the household, was the
concession to a subject of an attribute that properly belongs to
the sovereign or a public functionary. Another institution, slavery,
placed one subject over another in the position of despotic sovereign.
The relation of civis to peregrinus may be conjectured to have
originally been that of patronus to cliens, that is to say, of political
superior to political inferior.
Government or positive law has usually commenced in the inva-
sion by the stronger of the (moral) rights of the weaker ; but so
necessary is inequality to equality, or subordination to co-ordination,
that the (moral) crimes of ancient conquerors are regarded with
less aversion by philosophic historians, as being the indispensable
antecedents of subsequent civilization. The beginnings, then, of
positive law have been universally the less legitimate form of in-
equality, inequality between subject and subject, leaving its traces
in dispositions of the civil code: but the advance of civilization is
the gradual elimination of inequality from the law, until little
remains but that between magistrate and private person, or sove-
reign and subject. Modern society has advanced so far on the path
of equalization, in the recognition of all men as equal before the
law, that the distinctions of status, as they existed in the Koman law
of persons, are almost obliterated from the private code. Slavery
has vanished ; parental and marital power are of the mildest form ;
civilized countries accord the same rights to cives and peregrini ;
guardians (tutores) in modern jurisprudence, as in the later period
of Eoman law, are considered as discharging a public function, and
accordingly the relation of guardian and ward may be regarded as
a portion of the public code.
Before we terminate our general remarks on the nature of status,
it is necessary to distinguish from the law of Persons a department
of law with which, in consequence of a verbal ambiguity, it is some-
times confounded. Blackstone deserves credit for having recognized
Public law as part of the law of Persons ; but he also included under
the law of Persons that department of primary rights to which
belong the right of free locomotion, the right of using the bodily
organs, the right to health, the right to reputation, and other rights
which perhaps more commonly emerge in the redress meted out for
their violation, that is, in the corresponding sanctioning rights, the
right of redress for bodily violence, for false imprisonment, for bodily
i. § 8.] DE IVRIS DIVISIONE 17
injury, for defamation, and the like. These, however, are not the
special and exceptional rights of certain eminently privileged classes,
but the ordinary rights of all the community, at least of all who live
under the protection of the law; they belong to filiusfamilias as well
as to paterfamilias, to peregrinus and latinus as well as to civis.
The rights in question, that is to say, do not belong to the law of
unequal rights, or the law of Persons, but to the law of equal rights,
or the law of Things.
The anomalous institution of slavery, however, furnishes a ground
for controverting this arrangement ; for, as by this legalized iniquity
of ancient law, the slave, living as he did, not so much under the
protection as under the oppression of the law, was denuded of all
legal rights, including those of which we speak, we cannot say that
these rights belong to servus as well as to liber. The same, how-
ever, may be said of contract rights and rights of ownership, for
the slave had neither part nor lot in these on his own account any more
than in the right of a man to the use of his own limbs. In defining,
therefore, jura rerum to be the equal rights of all, we must be
understood to mean, of all who have any rights. Perhaps, indeed,
instead of saying that jura rerum are the rights of men regarded as
equal, it would be more exact to say, that while jus personarum
regards exclusively the unequal capacities, that is, the unequal rights
of persons, jus rerum treats of rights irrespectively both of the
equality and the inequality of the persons in whom they are vested,
leaving their equal or unequal distribution to be determined by jus
personarum.
In order to mark the natural position of these rights in the civil
code, I have avoided designating them, with Blackstone, by the
name of Personal rights, a term which I am precluded from using
by yet another reason. I have employed the terms Personal right
and Keal right to mark the antithesis of rights against a single
debtor and rights against the universe. Now the rights in ques-
tion are rights that imply a negative obligation incumbent on all
the world, that is to say, in our sense of the words they are not
Personal, but Real.
As contrasted with Acquired rights (Erworbene Eechte, jus
quaesitum) they are called Birthrights or PRIMORDIAL rights
(Urrechte), names which are open to objection, as they may seem to
imply a superior dignity of these rights, or an independence, in
contrast with other rights, of positive legislation, characters which
the name is not intended to connote. For purposes of classification
this branch of primary rights is of minor importance. Unlike
Status, Dominion, Obligation, Primordial rights are not the ground
of any primary division of the code. The actions founded on the
WHITTUCK
18 DE PERSONIS [i.§§9-12.
infraction of Primordial rights partly belong to the civil code of
obligation arising from Tort (e.g. actio injuriarum), partly and
principally to the criminal code. (On the different interpretations
which have been put on this threefold division of Private Law
cf. Moyle's Introduction to the Inst. Just.)
[ill. DE CONDICIONE HOMINVM.] ON DIVERSITIES OF CONDITION.
§ 9. Et quidem summa di- § 9. The first division of men
uisio de iure personarum haec by the law of persons is into
est quod omnes homines aut freemen and slaves,
liberi sunt aut serui.
§10. Rursusliberorumhorni- §10. Freemen are divided into
num alii ingenui sunt, alii freeborn and freedmen.
libertini.
§ 11. Ingenui suntqui liberi § 11. The freeborn are free by
nati sunt ; libertini qui ex birth ; freedmen by manumission
iusta seruitute manumissi sunt. from legal slavery.
§ 12. Rursus libertinorum § 12. Freedmen, again, are di-
(tria sunt genera; nam aut vided into three classes, citizens
dues Romani aut Latini aut of Kome, Latins, and persons on
dediticioTum} numero sunt. the footing of enemies sur-
de quibus singulis dispiciamus ; rendered at discretion. Let us
ac prius de cMiticiis. examine each class in order, and
commence with freedmen assimi-
lated to enemies surrendered at
discretion.
§ 12. As Gaius has not marked very strongly the divisions of
the present book, it may be worth while to consider what are the
leading branches of the doctrine of Status. Status falls under
three heads — liberty (libertas), citizenship (civitas), and domestic
position (familia).
Under the first head, men are divided into free (liberi) and slaves
(servi) : the free, again, are either free by birth (ingenui) or by
manumission (libertini). We have here, then, three classes to
consider: ingenui, libertini, servi.
Under the second head men were originally divided into citizens
(cives) and aliens (peregrini). The rights of citizens fall into two
branches, political and civil, the former being electoral and legisla-
tive power (jus suffragii) and capacity for office (jus honorum) ; the
latter relating to property (commercium) or to marriage (connu-
bium). Aliens were of course devoid of the political portion of
these rights (suffragium and honores) ; they were also devoid of
proprietary and family rights as limited and protected by the jus
civile (commercium and connubium), though they enjoyed corre-
sponding rights under the jus gentium. At a subsequent period
a third class were intercalated between cives and peregrini, namely,
Latini, devoid of the political portion of the rights of citizenship, and
I. §§ 9-12.] DE CONDICIONE HOMINVM 19
enjoying only a portion of the private rights of citizenship, com-
mercium without connubium. Here also, then, we have three
classes, cives, Latini, peregrini.
The powers of the head of a family came to be distinguished by
the terms potestas, man us, mancipium: potestas, however, was
either potestas dominica, power over his slaves, or potestas patria,
power over his children, which, at the period when Koman law is
known to us, were different in kind ; so that the rights of pater-
familias were really fourfold. Manus or marital power placed the
wife on the footing of filiafamilias, which was the same as that of
filiusfamilias. Paterfamilias had a legal power of selling (mancipare)
his children into bondage ; and mancipium, which is also a word
used to denote a slave, designated the status of a filiusfamilias who
had been sold by his parent as a bondsman to another paterfamilias.
In respect of his purchaser, such a bondsman was assimilated to
a slave i in respect of the rest of the world, he was free and a
citizen, though probably his political capacities were suspended as
long as his bondage (mancipii causa) lasted, § 116*. As slaves are
treated of under the head of libertas, and the status of the wife
(manus) was not legally distinguishable from that of the son,
we may say, that in respect of domestic dependence or inde-
pendence (familia), as well as in respect of libertas and civitas,
men are divided into three classes, — paterfamilias, filiusfamilias,
and Qui in mancipio est ; paterfamilias alone being independent (sui
juris), the other two being dependent (alieni juris) in unequal degrees.
These different classes are not examined by Gaius with equal
minuteness. Under the first head he principally examines the
libertini : the classes under the second head, cives, Latini, peregrini,
are only noticed indirectly, i. e. so far as they present a type for the
classification of libertini ; and the bulk of the first book of the
Institutions is devoted to domestic relations.
In modern jurisprudence, Status having disappeared, the law of
domestic relations — the relation of husband to wife, parent to child,
guardian to ward — constitutes the whole of that of which formerly
it was only a part, the law of Persons. It differs from the rest of
the civil code in that, while the relations of Property and Obligation
are artificial and accidental, the relations governed by the code of
the Family are natural, and essential to the existence of the human
race: so much so that the principal relations of the family extend
to the rest of the animal world, and the portion of the code relating
to them is called by Ulpian pre-eminently jus Naturale, Dig. 1, 1, 3,
Inst. 1, 2 pr. Secondly, whereas every feature of Property and
Obligation is the creation of political law, Domestic life is only
partially governed by political law, which leaves the greater portion
C 2
20
DE PERSONIS
[i. §§ 13-27.
of its rights and duties to be ruled by the less tangible dictates of
the moral law.
The pure law of the Family, that is, when we exclude all con-
sideration of Property and Obligation relating to property, is of
very moderate compass : but with the pure code of the family it is
convenient to aggregate what we may call with Savigny, Syst. § 57,
the applied code of the Family, i. e. such of the laws of Property and
Obligation as concern members of the family group — husband and
wife, parent and child, guardian and ward. The main divisions
then of the substantive code are Family law Pure and Applied ; the
law of Ownership ; and the law of Obligation. If, in view of its
importance, we separate from the law of Ownership the law of
Rerum Universitates, confining the law of Ownership to the province
of Ees singulae, we may add to the three we have enumerated a
fourth division, the law of Successions per universitatem. Sohm, § 29.
[lIII. DE DEDITICIIS VEL LEGE
AELIA SENTIA.]
§ 13. Lege itaque Aelia
Sentia cauetur ut qui serui a
dominis poenae nomine uincti
sint, quibusue stigmata in-
scripta sint, deue quibus ob
noxam quaestio tormentis ha-
bita sit et in ea noxa fuisse
conuicti sint, quiue ut ferro
aut cum bestiis depugnarent
traditi sint, inue ludum custo-
diamue comecti fuerint, et postea
uel ab eodem domino uel ab
alio manumissi, eiusdem con-
dicionis liberi fiant, cuius con-
dicionis suntperegrini deditim.
[V. DE PEEEGRINIS DEDI-
TICIIS.]
§ 14. Vocantur autem pere-
grini dediticii hi qui quondam
aduersus populum Romanum
armis susceptis pugnauerunt,
deinde uicti se dediderunt.
§ 15. Huius ergo turpitu-
dinis seruos quocumque modo
et cuiuscumque aetatis manu-
missos, etsi pleno iure domi-
norum fuerint, numquam aut
ciues Romanes aut Latinos fieri
FREEDMEN ASSIMILATED TO SUR-
RENDERED FOES AND DISPOSI-
TIONS OF THE LEX AELIA SENTIA.
§ 13. The law Aelia Sentia
enacts that slaves who have been
punished by their proprietors
with chains, or have been branded,
or have been examined with
torture on a criminal charge, and
have been convicted, or have been
delivered to fight with men or
beasts, or have been committed to
a gladiatorial school or a public
prison, if subsequently manu-
mitted by the same or by another
proprietor, shall acquire by manu-
mission the status of enemies
surrendered at discretion.
CONCERNING SURRENDERED
ENEMIES.
§ 14. Surrendered enemies are
people who have taken up arms
and fought against the people of
Eome and having been defeated
have surrendered.
§ 15. Slaves tainted with this
degree of criminality, by what-
ever mode they are manumitted
and at whatever age, and notwith-
standing the plenary dominion
of their proprietor, never become.
I. §§ 13-27.]
« 3 -1
DE LIBERTINIS
21
dicemus, sed omni modo dedi-
ticiorum numero constittd in-
tellegeinus.
§ 16. Si uero in nulla tali
turpitudine sit seruus, manu-
missum modo ciuem Romanum
modo Latinum fieri dicemus.
§ 17. Nam in cuius persona
tria haec concurrunt, ut maior
sit annorum triginta, et ex iure
Quiritium domini, et iusta ac
legitima inanumissione libere-
tur, id est uindicta aut censu
aut testamento, is ciuis Ro-
manus fit ; sin uero aliquid
eorum deerit, Latinus erit.
[FT. DE MANVMISSIONE VEL
CAVSAE PROBATIONS.]
§ 18. Quod autem de aetate
serui requiritur, lege Aelia
Sentia introductum est. nam
ea lex minores xxx annorum
seruos non aliter uoluit manu-
missos ciues Roman os fieri,
quam si uindicta, apud con-
silium iusta causa manumis-
sionis adprobata, liberati fue-
rint.
§ 19. Iusta autem causa
manumissionis est ueluti si
quis filium filiamue aut fratrem
sororemue naturalem,aut alum-
num, aut paer^agogum, aut
seruum procuratoris habendi
gratia, aut ancillam matrimonii
causa, apud consilium manu-
mittat. »
[rZJ. DE CONSILIO ADHIBENDO.]
§ 20. Consiliuin autem ad-
hibetur in urbe Roma quidem
citizens of Rome or Latins, but
can only acquire the status of
enemies who have surrendered.
§ 1 6. If the slave has not com-
mitted offences of so deep a dye,
manumission sometimes makes
him a citizen of Rome, sometimes
a Latin.
§ 17. A slave in whose person
these three conditions are united,
thirty years of age, quiritary
ownership of the manumitter,
liberation by a civil and statutory
mode of manumission, i. e. by
the form of vindicta, by entry
on the censor's register, by testa-
mentary disposition, becomes
a citizen of Rome: a slave
who fails to satisfy any one of
these conditions becomes only a
Latin.
ON MANUMISSION AND PROOF OF
ADEQUATE GKOUNDS OF MANU-
MISSION.
§ 18. The requisition of a cer-
tain age of the slave was intro-
duced by the lex Aelia Sentia,
by the terms of which law, unless
he is thirty years old, a slave
cannot on manumission become
a citizen of Rome, unless the
mode of manumission is by the
form of vindicta, preceded by
proof of adequate motive before
the council.
§ 19. There is an adequate
motive of manumission if, for in-
stance, a natural child or natural
brother or sister or foster child
of the manumitter's, or a teacher
of the manumitter's child, or a
male slave intended to be em-
ployed as an agent in business,
or a female slave about to become
the manumitter's wife, is presented
to the council for manumission.
CONCERNING THE CONSTITUTION OF
THE COUNCIL.
§ 20. The council is composed
in the city of Rome of five sena-
22
DE PERSONIS
[i. §§ 13-27.
L v a
quinque senatorum et quinque
equitum Romanorum puberum ;
in prouinciis autem uiginti
recuperatorum ciuium Roma-
norum, idque fit ultimo die
conuentus ; sed Romae certis
diebus apud consilium manu-
mittuntur. maiores uero tri-
ginta annorum serui semper
manuinitti solent, adeo ut uel
in transitu manumittantur,
ueluti cum praetor aut pro
consule in balneum uel in thea-
trum eat.
§ 21. Praeterea minor tri-
ginta annorum seruus [manu-
missus] potest ciuis Romanus
fieri, si ab eo domino qui sol-
uendo non erat, testamento
eum liberum et heredem re-
lictum «•
(24 uersus in C legi nequeunt)
Ulp. 1, 14 ; Inst. 1,6, 1 ; Epit.
1, 1, 2.
§ 22. • homines Latini
luniani appellantur ; Latini
ideo, quia adsimulati sunt
Latini s coloniariis ; luniani
ideo, quia per legem luniam
libertatem acceperunt,cum olim
serui uiderentur esse.
§ 23. New tamen illis per-
mittit lex lunia uel ipsis testa-
mentum facere, uel ex testa-
mento alieno capere, uel tutores
testamento dari. Ulp. 20, 14.
§ 24. Quod autem diximus
ex testamento eos capere non
posse, ita intellegemus, ne quid
cftrecto hereditatis legatorumue
nomine eos posse capere dica-
nms: alioquin per fideicom-
missum capere possunt.
§ 25. Hi uero qui dediticio-
tors and five Roman knights
above the age of puberty : in the
provinces of twenty recuperators,
who must be Roman citizens, and
who hold their session on the last
day of the assize. At Rome the
council holds its session on certain
days appointed for the purpose.
A slave above the age of thirty
can be manumitted at any time,
and even in the streets, when the
praetor or pro-consul is on his
way to the bath or theatre.
§ 21. Under the age of thirty a
slave becomes by manumission
a citizen of Rome, when his owner
being insolvent leaves a will, in
which he gives him his freedom
and institutes him his heir (2
§ 154), provided that no other
heir accepts the succession.
§ 22. Slaves manumitted in
writing, or in the presence of
witnesses, or at a banquet, are
called Latini Juniani: Latini be-
cause they are assimilated in
status to Latin colonists (§ 131),
Juniani because they owe their
freedom to the lex Junia, before
whose enactment they were slaves
in the eye of the law.
§ 23. These freedmen, however,
are not permitted by the lex
Junia either to make a will or
to take under the will of another,
or to be appointed testamentary
guardians.
§ 24. Their incapacity to take
under a will must only be under-
stood as an incapacity to take
directly as heirs or legatees, not
to take indirectly as beneficiaries
of a trust.
§ 25. Freedmen classed with
I. §§ 13-27.]
DE LIBERTINIS
23
rum numero sunt nullo modo
ex testamento capere possunt,
non magis quam quilibet pere-
grinus, -nee ipsi testamentum
facere possunt secundum id
quod magis placuit,
§ 26. Pessima itaque libertas
eorum est qui dediticiorum
numero sunt ; nee ulla lege
aut senatusconsulto aut con-
stitutione principali aditus illis
ad ciuitatem Romanam datur.
§ 27. Quin etiam in urbe
Roma uel intra centesimum
urbis Romae miliarium morari
prohibentur; et si qui contra
ea fecerint, ipsi bonaque eorum
publice uenire iubentur ea con-
dicione, ut ne in urbe Roma
uel intra centesimum urbis
Romae miliarium seruiant neue
umquam manumittantur ; et si
manumissi fuerint, serui populi
Romani esse iubentur. et haec
ita lege Aelia Sentia cowpre-
hensa sunt.
surrendered enemies are incapable
of taking under a will in any
form, as are other aliens, and are
incompetent to make a will ac-
cording to the prevalent opinion.
§ 26. It is only the lowest
grade of freedom, then, that is
enjoyed by freedmen assimilated
to surrendered aliens, nor does
any statute, senatusconsult, or
constitution open to them a way
of obtaining] Roman citizen-
ship.
§ 27. Further, they are forbidden
to reside in the city of Rome or
within the hundredth milestone
from it ; and if they disobey the
prohibition, their persons and
goods are directed to be sold on
the condition that they shall be
held in servitude beyond the
hundredth milestone from the
city, and shall be incapable of
subsequent manumission, and, if
manumitted, shall be the slaves
of the Roman people : and these
provisions are dispositions of the
lex Aelia Sentia.
§ 14. Peregrini dediticii. Cf. Livy 1, 38 ; Theoph. 1, 5, 3.
§ 15. Pleno jure. Cf. § 54 and 2 § 41.
§ 17. The earliest forms of manumission depended on the fiction
that the slave is a freeman. They therefore carry us back to a time
when manumission was not legally recognized. Cf. Sohm, p. 174,
n. 4, and p. 58, n. 4. Manumission was either a public or a private
act. When manumission, besides freeing a slave from the dominion
of his proprietor, converted him into a citizen of Rome, it was not
a matter of merely private interest to be accomplished by the sole
volition of the proprietor. Accordingly, the three modes of manu-
mission which conferred Roman citizenship on the manumitted
slave, vindicta, censu, testamento, involved in different forms the
intervention of the State.
In manumission by Vindicta the State was represented by the
praetor. The vindicta or festuca was a rod or staff, representing
a lance, the symbol of dominion, with which the parties in a real
action (vindicatio) touched the subject of litigation as they solemnly
24 DE PEKSONIS [i.§§ 13-27.
pronounced their claim, 4 § 16. Accordingly it was used in a suit
respecting freedom (liberalis causa), for this, as status is a real right
(jus in rem), was a form of real action, and was sometimes pro-
secuted by way of genuine litigation, sometimes was merely a solemn
grant of liberty, that is, a species of alienation by surrender in the
presence of the magistrate (in jure cessio). In a liberalis causa the
slave to be manumitted, being the subject of the fictitious litigation,
could not himself be a party, but was advocated by a vindex or
adsertor libertatis, who in later times was usually represented by
the praetor's lictor. The adsertor grasping the slave with one of
his hands, and touching him with the vindicta, asserted his freedom.
The proprietor quitting his grasp of the slave (manu mittens) and
confessing by silence or express declaration the justice of the claim,
the magistrate pronounced the slave to be free. This procedure,
which came to be much curtailed, belonging to the praetor's volun-
tary, not his contentious, jurisdiction, did not require the praetor to
be seated on his elevated platform in the comitium (pro tribunali),
but might be transacted by him on the level ground (de piano) ; and
as the mere presence of the praetor constituted a court (jus), he was
usually seized upon for the purpose of manumissions as he was
preparing to take a drive (gestatio), or to bathe, or to go to the
theatre, § 20 (for the different accounts given of this mode of manu-
mission see Roby, Private Law, 1, p. 26, n. 1).
In manumission by the Census the interests of the State were
represented by the censor. Censu manumittebantur olim qui
lustrali censu Romae jussu dominorum inter cives Romanos
censum profitebantur, Ulpian, 1, 8. 'Registry by the censor was
an ancient mode of manumission by the quinquennial census at
Rome when a slave at his master's order declared his right
to make his return of property (professio) on the register of
Roman citizens.' Ex jure civili potest esse contentio, quum
quaeritur, is qui domini voluntate census sit, continuone an ubi
lustrum conditum liber sit, Cic. De Orat. 1, 40. 'It is a question
of civil law, when a slave is registered with his owner's sanction,
whether his freedom dates from the actual inscription on the
register or from the close of the censorial period.' The census
was a republican institution, which had been long obsolete when
Gaius wrote. Ulpian, 1. c., speaks of it as a thing of the past.
Since the Christian era only three had been held, the last under
Vespasian, A. D. 74.
Wills were originally executed at the Comitia calata, 2 § 101,
where the dispositions of the testator, including his donations of
freedom, received legislative sanction, being converted into a private
law by the ratification of the sovereign assembly. When a new
i. §§ 13-27.] DE LIBERTINIS 25
form of will was introduced, 2 § 102, testators retained their power
of manumission, although the people here at the utmost were
only symbolically represented by the witnesses of a mancipation.
Bequests of liberty were either direct or indirect. A direct bequest
of liberty (directo data libertas) made the manumitted slave a freed-
man of the testator (libertus orcinus, Inst. 2, 24, 2): an indirect
bequest, that is, a request to the heir to manumit the slave (fidei-
commissaria libertas), made the slave on manumission a freedman
of the heir, 2 § 266.
§ 18. The lex Aelia Sentia passed in the reign of Augustus, A.D. 4,
and named after the consuls Sextus Aelius Catus and Caius Sentius
Saturninus, was intended to throw obstacles in the way of acquir-
ing Koman citizenship (Sueton. Aug. 40). One of its enactments
provided that a slave under the age of thirty could not be made
a citizen unless manumitted by vindicta, after proof of adequate
motive before a certain judicial board. We may inquire what would
be the effect of manumission if the causae probatio were omitted.
Inscription on the censor's register, if in use, would probably have
been null and void, as this ceremony was either a mode of making
a Eoman citizen or it was nothing. Testamentary manumission, as
we learn from Ulpian, 1, 12, left the man legally a slave, but gave
him actual liberty (possessio libertatis, in libertate esse, as opposed
to libertas), a condition recognized and protected by the praetor.
Manumission by vindicta left him still a slave (according to the
MS. of Ulpian, ib. the slave of Caesar). Either the lex Aelia Sentia
or lex Junia, it is uncertain which (cf. §§ 29, 31 ; Ulpian, 1. c.),
apparently provided that, in the absence of causae probatio, the
minor triginta annis manumissus should belong to the new class
which it introduced, namely, the Latini.
§ 19. Alumnus denotes a slave child reared by the manumitter,
as appears from the following passage : Alumnos magis mulieribus
conveniens est manumittere, sed et in viris receptum est, satisque
est permitti eum manumitti in quo nutriendo propensiorem animum
fecerint, Dig. 40, 2, 14 pr. 'Foster children are more naturally
manumitted by women than by men, though not exclusively ; and
it suffices to allow the manumission of a child who has won his
master's affection in the course of his education.' (For the custom
derived from Greece of employing slaves as paedagogi in Koman
households see Smith's Diet, of Greek and Koman Antiq. s. v.)
§ 20. The Equites Romani, who at Rome composed a moiety
of the council mentioned in the text, were either Equites or Equites
equo publico (for the title eques Romanus equo publico, which appears
in inscriptions, see Wilmann's Index Inscriptionum, 2178, 2182 ; cf.
Greenidge, Infamia, p. 88). Eques was such merely by his census :
26 DE PERSONIS [i. §§ 13-27.
Eques equo publico was a youth nominated by the emperor to the
turmae equitum ; not, however, intended for actual service with the
legions, but merely marked out as an expectant of future employ-
ment in higher public functions, military or civil. The title of
Princeps juventutis, often conferred by the emperors on their suc-
cessors designate, denoted the leader of the Equites equo publico.
This distinction of classes among Equites lasted down to the time
of Hadrian, and perhaps later. In the time of Augustus, and sub-
sequently, the list of judices (album judicum) was, according to
Mommsen (Staatsr. 3, p. 535), taken simply from the Equites
equo publico, the Senatores being no longer a decuria. Augustus
added a new decuria, the Ducenarii, those whose census amounted
to 200,000 sesterces, who judged minor cases ; and subsequently
Caligula added a fifth (cf. Greenidge's Koman Public Life).
Kecuperators are judges not taken from the panel (album judi-
cum) ; see Greenidge's Legal Procedure of Cicero's Time, p. 266.
§ 21. Ulpian says, 1, 14, that a slave either under thirty years of
age, or one who otherwise would only have become dediticius, or
a freedman of the lowest class, if he is instituted the heres neces-
sarius of an insolvent, becomes civis Komanus; cf. 2 § 154.
Mommsen would supplement the text in this section with the
following words — ' relictum alius heres nullus excludit neque ullus
alius ex eo testamento heres existat idque eadem lege cautum est.'
In respect of what is missing in the remainder of the lacuna cf. note
to Huschke's Gaius.
When manumission was a purely private act, it could not confer
Koman citizenship ; it could only make a dediticius or a latinus.
The codex Alaricianus or Breviarium Alaricianum, a code pro-
mulgated A.D. 506 by Alaric II, king of the Visigoths of Spain and
Gaul, contained, besides extracts from the codex Theodosianus (pro-
mulgated A.D. 438), a selection from the Sententiae of Paulus and
an epitome of these Institutes of Gaius. From this epitome it
appears that in the paragraphs now obliterated Gaius proceeded to
explain the modes of private manumission by which a slave became
Latinus Junianus, and instanced writing (per epistolam), attestation
of witnesses (inter amicos), invitation of the slave to sit with other
guests at the table of his master (convivii adhibitione).
§ 22. The lex Junia, as this law is called by Gaius and Ulpian
(3, 3), or lex Junia Norbana, the title given to it by Justinian
(Inst. 1, 5, 3), may be regarded a.s of uncertain date ; the common
opinion based on the word Norbana has been that it was passed in
the reign of Tiberius, A. D. 19, fifteen years after the lex Aelia
Sentia in the consulate of Marcus Junius Silanus and Lucius
Norbanus Balbus, but it is now thought by some well-known
I. §§ 13-27.] DE LIBERTINIS 27
writers to be earlier than the lex Aelia Sentia ; thus Mommsen
(Staatsr. 3, 626) is inclined to put it back to the end of the free republic
(cf. Schneider, Zeitschr. d. Sav. Stiftung v. E. A. 1884). It denned
and modified the status conferred by such acts of private manu-
mission as were probably mentioned in this paragraph, converting
Praetoris tuitione liber into ipso jure liber, or possessio libertatis
into genuine libertas ; with, however, sundry grievous stints and
deductions. Under this statute the freedman was nominally assimi-
lated to Latinus coloniarius, the citizen of a Koman colony in
Latium ; that is, had a moiety of the private rights composing civitas
Komana or jus Quiritium, possessing commercium without con-
nubium. As incapable of connubium or civil marriage, the Latinus
was incapable of patria potestas over his children and of agnatio or
civil relationship. Though incapable of civil marriage he was of
course capable of gentile marriage (matrimonium, uxorem liberorum
quaerendorum causa ducere) and of natural relationship (cognatio),
just as an alien (peregrinus), though, by want of commercium,
incapable of dominion ex jure Quiritium, was capable of bonitary
ownership (in bonis habere) under the jus gentium.
In virtue of commercium, the Latinus Junianus was capable of
Quiritary ownership, of civil acquisition and alienation (usucapio,
mancipatio, in jure cessio), contract (obligatio), and action (vindi-
catio, condictio), like a Koman citizen ; but in respect of testamentary
succession his rights were very limited. He was said to have
testamentary capacity (testamenti factio), Ulpian, 20, 8 ; but this
only meant that he could perform the part of witness, or familiae
emptor, or libripens (2 § 104), i.e. could assist another person to
make a valid will ; not that he could take under a will either as
heir or as legatee, or could dispose of his own property by will,
Ulpian, 20, 14. At his death all his property belonged to his
patron, as if it were the peculium of a slave, 3 § 56. In fact, as
Justinian says : Licet ut liberi vitam suam peragebant, attamen
ipso ultimo spiritu simul animam atque libertatem amittebant,
Inst. 3, 7, 4. ' Though free in their lifetime, the same moment
that deprived them of life reduced them to the condition of slaves.'
Although in the person of libertus himself, Latinitas retained
many traces of its servile origin, yet it was not so for his posterity ;
these disabilities only attached to the original freedman, not to his
issue. The son of the dediticius or Latinus Junianus, though
reduced to absolute penury by the confiscation of the parental
property to the patron, began, and continued, the world with
the ordinary capacities, respectively, of peregrinus and Latinus
coloniarius, and was under no legal obligations to the patron of his
father.
DE PERSONIS
[i. §§ 28-35.
Long before the time of Gaius, Latinitas or Latium had only
a juristic, not an ethnographic signification. Cf. § 79. Soon after
the Social War (B.C. 91) all Italy received the ci vitas Komana.
Originally Gallia Cispadana (Southern Lombardy) had civitas
Komana, while Gallia Transpadana (Northern Lombardy) had only
Latinitas, but Gallia Transpadana afterwards obtained civitas.
Latinitas was a definite juristic conception, and Latin status was
conferred as a boon on many provincial towns and districts that had
no connexion with Latium or its races. Vitellius is carped at by
Tacitus for his lavish grants of Latinity (Latium vulgo dilargiri,
Hist. 3, 55). Hadrian made many similar grants (Latium multis
civitatibus dedit, Spartian, Had. 21), and Vespasian conferred Latin
rights on the whole of Spain, Pliny, Hist. Nat. 3, 4. See § 131
Comm.
[QVIBVS MODIS LATINI AD civi-
TATEAf KOMANAJf PEEVENIANT.]
§ 28. Latini uero multis
modis ad ciuitatem Romanam
perueniunt.
§ 29. Statim enim ex lege
Aelia Sentia minores triginta
annorum manumissi et Latini
facti si uxores duxerint uel
clues Romanas uel Latinas co-
loniarias uel eiusdem condi-
cionis, cuius et ipsi essent, idque
testati fuerint adhibitis non
minus quam septem testibus
ciuibus Romania puberibus, et
filium procreauerint, cum is
films anniculus esse coeperit,
datur eis potestas per earn
legem adire praetorem uel in
prouinciis praesidem prouinciae,
et adprobare se ex lege Aelia
Sentia uxorem duxisse et ex ea
filium anniculum habere ; et si
is apud quern causa probata
est id ita esse pronuntiauerit,
tune et ipse Latinus et uxor
eius, si et ipsa (eiusdem con-
dicionis sit, etfilius, si et ipse)
eiusdem condicionis sit, ciues
Roman! esse iubentur.
Ulp.3,3.
MODES BY WHICH LATIN FREEDMEN
BECOME ROMAN CITIZENS.
§28. Latins have many avenues
to the Roman citizenship.
§ 29. For instance, the lex Aelia
Sentia enacts that when a slave
below the age of thirty becomes
by manumission a Latin, if he
take to himself as wife a citizen of
Rome, or a Latin colonist, or a
freedwoman of his own condition,
and thereof procure attestation by
not less than seven witnesses,
citizens of Rome above the age of
puberty, and begets a son, on the
latter attaining the age of a year,
he is entitled to apply to the
praetor, or, if he reside in a pro-
vince, to the president of the
province, and to prove that he
has married a wife in accordance
with the lex Aelia Sentia, and
has had by her a son who has
completed the first year of his age :
and thereupon if the magistrate
to whom the proof is submitted
pronounce the truth of the de-
claration, that Latin and his wife,
if she is of the same condition,
and their son, if he is of the same
condition, are declared by the
statute to be Roman citizens.
I. §§ 28-35.] Q. M. LATINI AD CIVITATEM R. P. 29
§ 30. Ideo autem in huius
persona adiecimus ' si et ipse
eiusdem condicionis sit,' quia
si uxor Latini ciuis Romana
est, qui ex ea nascitur, ex nouo
senatusconsulto, quod auctore
diuo Hadriano factum est, ciuis
Romanus nascitur.
Cf. § 80 ; Ulp. 1. c.
§ 31. Hoc tamen ius adi-
piscendae ciuitatis Romanae
etiamsi soft minores triginta
annorum manumissi et Latini
facti ex lege Aelia Sentia habue-
runt, tamen postea senatuscon-
sulto, quod Pegaso et Pusione
consulibus factum est, etiam
maioribus triginta annorum
manu missis Latinis factis con-
cess um est.
§ 32. Ceterum etiamsi ante
decesserit Latinus, quam anni-
culi filii causam probauerit,
potest mater eius causam pro-
bare, et sic et ipsa fiet ciuis
Romana, si Latina fuerit 1
— permissum 1 — <?ui-
busdam 1 ipse filius
ciuis Romanus sit, quia ex ciue
Romana matre natus est, tamen
debet causam probare ut suus
heres patri fiat.
§ 32 a. (quae) uero diximus
de filio annicul(o, eadem et de
filia annicula) dicta intelle-
gemus.
§326.
id
est fiunt ciues Romani, si
Romae inter uigiles sex annis
militauerint. postea dicitur
factum esse senatusconsultum,
quo data est illis ciuitas
§ 30. The reason why I added,
when I mentioned the son, if of
the same condition, was this, that
if the wife of the Latin is a citizen
of Rome, the son, in virtue of the
recent senatusconsult made on
the motion of the late Emperor
Hadrian, is a citizen of Rome
from the date of his birth.
§ 31. This capacity of acquiring
Roman citizenship, though by
the lex Aelia Sentia exclusively
granted to those under thirty
years of age who had become
Latins by this statute, by a sub-
sequent senatusconsult, made in
the consulship of Pegasus and
Pusio, was extended to all freed-
men who acquire the status of
Latins, even though thirty years
old when manumitted.
§ 32. If the Latin die before
proof of his son's attaining the
age of a year the mother may
prove his condition, and there-
upon both she and her son, if she
be a Latin, become citizens of
Rome. And if the mother fails
to prove it, the tutors of the son
may do so or the son himself
when he has attained the age of
puberty. If the son himself is a
Roman citizen owing to the fact
of his having been born of a
Roman citizen mother, he must
nevertheless prove his condition
in order to make himself his
father's self successor.
§ 32 a. What has been said
about a son of a year old, must
be understood to be equally ap-
plicable to a daughter of that
age.
§ 32 &. By the Visellian statute
those either under or over thirty
years of age, who when manu-
mitted become Latins, acquire the
jus quiritium, i. e. become Roman
citizens, if they have served for
six years in the guards at Rome.
30
DE PERSONIS
[i. §§ 28-35.
Romana, si triennium militiae
expleuerint. Ulp. 3, 5.
§ 32 c. Item edicto Claudii
Latini ius Quiritium conse-
cuntur, si nauem marinam ae-
dificauerint, quae non minus
quam decem milia modiomm
frumenti capiat, eaque nauis
uel quae in eius locum sub-
stituta stt sex annis frumen-
tum Romam portauerit.
Ulp. 3, 6.
§ 33. Praeterea a .ZVerone
constitutum est ut si Latinus
qui patrimonium sestertium cc
m ilium plurisue habebit in
urbe Roma donmm aedifica-
uerit, in quam non minus quam
partem dimidiam patrimonii
sui inpenderit, ius Quiritium
consequatur.
Tac.Ann.15,43; Ulp. 3,1.
§ 34. Denique Traianus con-
stituit ut si Latinus in urbe
trienmo pistrinum exercuerit,
in quo in dies singulos non
minus quam centenos modios
frumenti ^)inseret, ad ius Quiri-
tium peruenia£. Ulp. 1. c.
§35. . -| 1 1
sequi 1 maiores tngmta
annorum manumissi et Latini
facti 1 ius Quiri-
tium consequi £n|ginta
annorum manumittant 1
1 manumissus uindicta
aut censu aut testamento
ciuis Romanus] libertus
fit qui euro, iterauerit. ergo si
seruus in | bonis tuis, ex iure
Quiritium meus erit, Latinus
quidem a te solo fieri potest,
iterari autem a me, non etiam
a te potest, et eo modo meus
libertus fit. sed et ceteris modis
A subsequent senatusconsultum
is said to have been passed, by
which Roman citizenship was con-
ferred on Latins, who completed
three years' active military service.
§ 32 c. Similarly by an edict of
Claudius Latins acquire the right
of citizenship, if they build a ship
which holds 10,000 modii of corn,
and this ship or one substituted
for it imports corn to Rome for
six years.
§33. Nero further enacted that
if a Latin having property worth
200,000 sesterces or more, build
a house at Rome on which he ex-
pends not less than half his pro-
perty, he shall acquire the right
of citizenship.
§34. Lastly, Trajan enacted that
if a Latin carry on the business of
miller in Rome for three years,
and grinds each day not less than
a "hundred measures of wheat, he
shall attain Roman citizenship.
§ 35. Slaves who become Latins
either because they are under
thirty at the time of their manu-
mission, or having attained that
age because they are informally
manumitted, may acquire Roman
citizenship by re-manumission in
one of the three legal forms, and
they are thereby made freedmen
of their re-manumitter. If a slave
is the bonitary property of one
person and the quiritary property
of another he can be made a Latin
by his bonitary owner, but his
re-manumission must be the act
of his quiritary owner, and even
if he acquires citizenship in other
I. §§ 28-35.] Q. M. LATINI AD CIVITATEM R. P. 31
ius Quiritium consecutus meus ways he becomes the freedman of
libertus fit. bonorum autem his quiritary owner. The praetor,
quae -, cum is morietur, however, invariably gives the
reliquerit tibi possessio datur, bonitary owner possession of the
quocumque modo ius Quiritium inheritance of such freedman. A
fuerit consecutus. quodsi cuius slave in whom his owner has both
et in bonis et ex iure Quiritium *??*?* and q^tary property,
., . r j • if twice manumitted by his owner,
sit manumissus, ab eodem sci- ire b the ^ manu.
licet et Latinus fieri potest et miiion4the Latin statuSj and by
ius Quiritium consequi. the second Koman citizenship.
Ulp. 3, 1-4.
§ 29. This enactment is stated by Ulpian to belong to the lex
Junia (Ulp. 3, 3), cf. § 18, comm.
Pronuntiaverit. The decision (sententia) of the judex in a judicium
ordinarium was either condemnatio or absolutio of the defendant.
In actions in which the case was left to the arbitrium of a judex
this was apparently preceded by pronuntiatio, a declaration of the
rights of the parties. This appears from the following, among
other passages: Sed et si fundum vindicem meum esse, tuque
confessus sis, perinde teneberis atque si dominii mei fundum esse
pronuntiatum esset, Dig. 42, 2, 6, 2. Si quum de hereditate inter
me et te controversia esset, juravero hereditatem meam esse, id
consequi debeo quod haberem si secundum me de hereditate pro-
nuntiatum esset, Dig. 12, 2, 10, 3. When the pronuntiatio was for
the plaintiff, if the defendant obeyed the arbitrium or provisional
order of the judex by making restitution, there was no subsequent
condemnatio. Cf. 4 § 49. In the form of real action, called a prae-
judicium, that is, a preliminary issue of fact, the pronuntiatio formed
the whole result of the trial, and was not followed by sententia.
Similarly, when a Latinus laid his claim of Eoman citizenship
before the praetor under this enactment of the lex Aelia Sentia, the
result of the extraordinaria cognitio of the praetor was merely
a pronuntiatio without any subsequent decretum.
§ 31. Pegasus and Pusius were consuls in the reign of Vespasian.
Inst. 2, 23, 5.
§ 32 &-§ 35. For references to the Visellian law cf. Cod. 9, 21
and 31. It was probably passed A.D. 24, when Serv. Cornelius
Cethegus and L. Visellius Varro were consuls (but see Mommsen,
Staatsr. 3, 424). Besides the method provided by the lex Aelia
Sentia, and by the Senatusconsultum mentioned in § 31, Latinus or
Latina might attain the Eoman citizenship under the following con-
ditions : —
1. By erroris causae probatio, i.e. if Latinus marry Peregrina,
believing her to be Latina or Civis, § 70 ; or Latina marry Pere-
32 DE PERSONIS [T. §§ 28-35.
grinus, believing him to be Latinus, § 69 ; or if Civis, believing
himself to be Latinus or Peregrinus, marry Latina, §71; or if Civis
marry Peregrinus, believing him to be Civis or Latinus ; or if Civis
marry Latina or Peregrina, believing her to be Civis Romana, § 67 ;
on birth of a child and on proof of this mistake, the Latinus or
Latina and their offspring acquire the citizenship.
2. By magistracy in a Latin colony Latinus becomes Civis Ro-
manus, §§ 95, 96.
3. By re-manumission (iteratio), i.e. on slaves under thirty when
manumitted acquiring Latinity by one of the private modes of
manumission, a subsequent manumission by one of the public
modes, vindicta, censu, or testamento, converted them from Latini
into Gives, § 35, and Ulp. 3, 4.
4. Under the lex Visellia above mentioned by six years' service
in the Eoman guards (si inter vigiles Komae sex annos militaverit,
Ulp. 3, 5). A decree of the senate made three years' service a
sufficient title, § 32 &. Compare the provision of 13 Geo. II, c. 3,
whereby 'every foreign seaman who in time of war serves two years
on board an English ship, and all foreign protestants serving two
years in a military capacity in the American colonies, are naturalized.
5. Under a constitution of Nero by building a house in Eome
(aedificio, Ulp. 3, 1), § 33.
6. Under an edict of Claudius by building a ship of 10,000 modii
and importing corn to Kome for six years, § 32 c, Sueton. Claud.,
Ulp. 3, 6. Compare the English law by which all foreign pro-
testants employed three years in the whale fishery are naturalized,
except as to capacity for public office.
7. Under a constitution of Trajan by building a mill and bake-
house for the supply of Rome (pistrino, Ulp. 3, 1), § 34.
8. By bearing three children, Ulp. 3, 1.
9. By imperial grant (beneficio principali, Ulp. 3, 2). This and
the previous mode of acquiring citizenship were perhaps men-
tioned by Gaius at the beginning of § 35.
Civitas Romana and Jus Quiritium are synonymous, but the
former term was always used when citizenship was conferred on
a Peregrinus, the latter generally when it was conferred on Latinus
Junianus : e. g. Quare rogo, des ei civitatem, est enim peregrinae
conditionis, manumissus a peregrina. . . . Idem rogo, des ius
Quiritium libertis Antoniae Maximillae . . . quod a te, petente
patrona, peto, Pliny to Trajan, 10, 4. Ago gratias, domine, quod
et ius Quiritium libertis necessariae mihi feminae et civitatem
Romanam Harpocrati, iatraliptae meo, sine mora indulsisti, ibid.
10, 5. Civitas Romana, however, was sometimes used in speaking
of the enfranchisement of Latinus, as we see from § 28.
I. §§ 36-41.] QVIBVS MANVMITTERE NON LICET. 33
§ 36. | Non tamen cuicum-
que uolenti manumittere licet.
Inst. 1, 6 pr.
§ 37. Nam is qui \ in
fraudem creditorum uel in
fraudem patroni manumittit,
nihil agit, quia lex Aelia Sentia
inpedit libertatem.
Inst. 1. c.,Ulp. 1,15.
§ 38. Item eadem lege mi-
nori xx annorum domino non
aliter manumittere permittitur,
quam [si] uindicta apud con-
silium iusta causa manumis-
sionis adprobata [fuerit].
Inst. 1, 6, 4.
§ 39. lustae autem causae
manumissionis sunt ueluti si
quis p'atrem aut matrem aut
paedagogum. aut conlactaneum
manumittat. sed et illae causae,
quas superius in seruo minore
xxx annorum exposuimus, ad
hiinc quoque casum de quo
loquimur adferri possunt. item
ex diuerso hae causae, quas in
minore xx annorum domino
rettulimus, porrigi possunt et
ad seruum minor em xxx an-
norum. Inst. 1, 6, 4, 5.
§ 40. Cum ergo certus modus
manumittendi minoribus xx
annorum dominis per legem
Aeliam Sentiam constitutus sit,
euenit ut qui xnn annos aetatis
expleuerit, licet testamentum
facere possit et in eo heredem
sibi instituere legataque relin-
quere possit, tamen, si adhuc
minor sit annorum xx, liberta-
tem seruo dare non possit.
Inst. 1, 6, 7.
§ 41. Et quamuis Latinum
facere uelit minor xx annorum
dominus, tamen nihilo minus
§ 36. Not every owner who is
so disposed is permitted to manu-
mit.
§ 37. An owner who would
defraud his creditors or his own
patron by an intended manumis-
sion, attempts in vain to manumit,
because the lex Aelia Sentia pre-
vents the manumission.
§ 38. Again, by a disposition of
the same statute, before attaining
twenty years of age, the only
process by which an owner can
manumit is fictitious vindication,
preceded by proof of adequate
motive before the council.
§ 39. It is an adequate motive
of manumission, if the father, for
instance, or mother or teacher or
foster-brother of the manumitter,
is the slave to be manumitted.
In addition to these, the motives
recently specified respecting the
slave under thirty years of age
may be alleged when the manu-
mitting owner is under twenty ;
and, reciprocally, the motives
valid when the manumitting
owner is under twenty are ad-
missible when the manumitted
slave is under thirty.
§ 40. As, then, the lex Aelia
Sentiaimposes acertain restriction
on manumission for owners under
the age of twenty, it follows that,
though a person who has com-
pleted his fourteenth year is com-
petent to make a will, and therein
to institute an heir and leave
bequests ; yet, if he has not at-
tained the age of twenty, he can-
not therein enfranchise a slave.
§ 41. And even to confer the
Latin status, if he is under the
age of twenty, the owner must
34
DE PERSONIS
[i. §§ 42-47.
debet apud consilium causam satisfy the council of the adequacy
probare et ita postea inter of his motive before he manumits
amicos manumittere. the slave in the presence of
witnesses.
§ 41. Justinian, having first reduced the age from 20 to 17,
or the beginning of the eighteenth year (Inst. 1, 6, 7), finally per-
mitted minors to enfranchise by will as soon as they could make
a valid will, i.e. at the age of 14 (Novella) 119, 2). He mentions
that the lowest class of freedmen (dediticia libertas) had long been
obsolete, and formally abolished the second class (latina libertas),
converting informal modes of making Latinus, such as per epistolam,
inter amicos, into modes of making Civis Komanus, and declaring
the rest inoperative, Cod. 7, 6. Cf. Moyle, Comm. Inst* 1 , 5.
DE LEGE FVFIA CANINIA.
§ 42. Praeterea lege Fufia
Caninia certus modus consti-
tutus est in seruis testamento
manumittendis. Inst. 1, 7, 1.
§ 43. Nam ei qui plures
quam duos neque plures quam
decem seruos habebit usque ad
partem dimidiam eiue numeri
manumittere permittitur ; ei
uero, qui plures quam x neque
plures quam xxx seruos habebit
usque ad tertiam partem eius
numeri manumittere permitti-
tur. at ei qui plures quam xxx
neque plures quam centum
habebit usque ad partem
quartam potestas manumit-
tendi rfatur. nouissime ei qui
plures quam c nee plures quam
D habebit, non plures manumit-
tere permittitur qua?rt quintain
partem; neque plures { )
tur : sed praescribit lex, ne cui
plures manumittere liceat quam
C. quodsi quis unum seruum
omnino aut duos habet, ad bane
legem non pertinet et ideo
liberamhabetpotestatern manu-
mittendi.
§ 42. Moreover, by the lex Fufia
Caninia a certain limit is fixed to
the number of slaves who can
receive testamentary manumis-
sion.
§ 43. An owner who has more
than two slaves and not more
than ten is allowed to manumit
as many as half that number ; he
who was more than ten and not
more than thirty is allowed to
manumit a third of that number ;
he who has more than thirty
and not more than a hundred is
allowed to manumit a fourth ;
lastly, he who has more than a
hundred and not more than five
hundred is allowed to manumit
a fifth : and, however many a man
possesses, he is never allowed to
manumit more than this number,
for the law prescribes that no one
shall manumit more than a hun-
dred. On the other hand, if a
man has only one or only two,
the law is not applicable, and the
owner has unrestricted power of
manumission.
I. §§ 42-47.] DE LEGE FVFIA CANINA
35
§ 44. Ac ne ad eos quidem
omnino haec lex pertinet qui
sine testam#ft£o manumittuni.
itaque licet iis, qui uindicta aut
censu aut inter amicos inanu-
mittunt, totam fainiliam libe-
rare, scilicet si alia causa non.
inpediat libertatem.
§ 46. Nam et si iestamento
scriptis in orbem seruis libertas
data sit, quia nullus ordo manu-
missionis inuenitur, nulli liberi
erunt, quia lex Fuh'a Caninia
quae in fraudem eius facta sint
rescindit. sunt etiam specialia
senatusconsulta,quibus rescissa
sunt ea quae in fraudem eius
legis excogitata sunt.
§ 47. In summa sciendum
est, (cum) lege Aelia Sentia
cautum sit, ut creditorum frau-
dandorum causa manumissi
liberi non fiant, hoc etiam ad
peregrines pertinere (senatus
ita censuit ex auctoritate
Hadriani), cetera uero iura eius
legis ad peregrines non per-
tinere.
§ 44. Nor does the statute apply
to any but testamentary manu-
mission, so that by the form
of vindicta or inscription on
the censor's register, or by at-
testation of friends, a proprietor
of slaves may manumit his whole
household, provided that there is
no other let or hindrance to im-
pede their manumission.
§ 46. If a testator manumits in
excess of the permitted number,
and arranges their names in a
circle, as no order of manumission
can be discovered, none of them
can obtain their freedom, as
both the lex Fufia Caninia itself
and certain subsequent decrees
of the senate declare null and
void all dispositions contrived
for the purpose of eluding the
statute.
§ 47. Finally, it is to be noted
that the provision in the lex Aelia
Sentia making manumissions in
fraud of creditors inoperative, was
extended to aliens by a decree of
the senate passed on the proposi-
tion of the Emperor Hadrian ;
whereas the remaining disposi-
tions of that statute are inapplic-
able to aliens.
§ 47. The lex Fufia Caninia, passed under Augustus (Sueton.
Aug. 40), to prevent the degradation of citizenship by testators abusing
their testamentary right of manumission, was generally called the
lex Furia Caninia before the manuscript of Gaius was re-examined
by Studemund ; it was abrogated by Justinian. See Inst. 1, 7.
The clause of the lex Aelia Sentia referred to in the text was retained
by Justinian. Inst. 1, 6 pr.
DE HIS QVI SVI VEL ALIENI IVEIS SINT.
§ 48. Sequitur de iure per-
sonarum alia diuisio. nam
quaedam personae sui iuris
sunt, quaedam alieno iuri
subiectae sunt. Inst. 1, 8 pr.
§ 48. Another division in the
law of Persons classifies men as
either dependent or independent
D 2
36
DE PERSONIS
[i. §§ 48-54.
§ 49. Rursus earum per-
sonarum, quae alieno iuri sub-
iectae sunt, aliae in po testate,
aliae in manu, aliae in mancipio
sunt. Inst. 1. c.
§ 50. Videamus mmc de his
quae alieno iuri subiectae sint ;
{nam,} si cognouerimus quae
ist&e personae sint, simul in-
tellegemus quae sui iuris sint.
O * Til
Inst. 1. c.
§ 51. Ac prius dispiciamus
de iis qui in aliena potestate
sunt. list. 1. c.
§ 52. In potestate itaque
sunt serui dorainorum. quae
quidem potestas iuris gentium
est : nam apud omnes peraeque
gentes animaduertere possumus
dominis in seruos uitae necis-
que potestatem esse ; et quod-
cumque per seruum adquiritur,
id domino adquiritur.
Inst. 1,8, 1.
§ 53. Sed hoc tempore neque
ciuibus Romanis, nee ullis aliis
hominibus qui sub imperio po-
puli Romani sunt, licet supra
modum et sine causa in seruos
suos saeuire ; nam ex constitu-
tions imperatoris Antonini qui
sine causa seruum suum occi-
derit, non minus teneri iubetur,
quam qui alienum seruum occi-
derit. sed et maior quoque
asperitas dominorum per eius-
dem principis constitutionem
coercetur ; nam consultus a
quibusdam praesidibus pro-
uinciarum de his seruis, qui ad
fana deorum uel ad statuas
principum confugiunt, prae-
cepit ut si intolerabilis uideatur
dominorum saeuitia cogantur
seruos suos uendere. et utrum-
que recte fit ; male enim nostro
iure uti non debemus; qua
§ 49. Those who are dependent
or subject to a superior, are either
in his power, in his hand, or in
his mancipation.
§ 50. Let us first explain what
persons are dependent on a
superior, and then we shall know
what persons are independent.
§ 51. Of persons subject to a
superior, let us first examine who
are in his power.
§ 52. Slaves are in the power of
their proprietors, a power recog-
nized by jus gentium, since all
nations present the spectacle of
masters invested with power of
life and death over slaves; and
(by the Roman law) the owner
acquires everything acquired by
the slave.
§ 53. But in the present day
neither Roman citizens, nor any
other persons under the empire
of the Roman people, are per-
mitted to indulge in excessive or
causeless harshness towards their
slaves. By a constitution of the
Emperor Antoninus, a man who
kills a slave of whom he is
owner, is as liable to punishment
as a man who kills a slave of
whom he is not owner : and in-
ordinate cruelty on the part of
owners is checked by another
constitution whereby the same
emperor, in answer to inquiries
from presidents of provinces con-
cerning slaves who take refuge at
temples of the gods, or statues
of the emperor, commanded that
on proof of intolerable cruelty a
proprietor should be compelled to
sell his slaves: and both ordi-
nances are just, for we ought not
I. §§ 48-54.] DE POTESTATE DOMINICA 37
ratione et prodigis interdicitur to make a bad use of our law-
bonorum suoruin administratio. ful rights, a principle recognized
Inst. 1,8, 2. *n the interdiction of prodigals
from the administration of their
fortune.
§ 54. Ceterum cum apud § 54. But as citizens of Rome
ciues Romanes duplex sit domi- may have a double kind of domi-
nium (nam uel in bonis uel ex nion, either bonitary or quiritary,
iure Quiritium uel ex utroque or a union of both bonitary and
iure cuiusque seruus esse in- quiritary dominion, a slave is in
telleg^tur), ita demum seruum the power of an owner who has
in potestate domini esse dice- bonitary dominion over him, even
mus, si in bonis eius sit, etiamsi unaccompanied with quiritary
simul ex iure Quiritium eius- dominion ; if an owner has only
dem non sit ; narn qui nudrfm ^are q^itary dominion he is not
ius Quiritium in seruo habet, d to have the slave m hls
is potestatem habere non in-
tellegitur.
§§ 52, 53. The condition of the slave was at its worst in the golden
period of Roman history. As soon as Rome found her power
irresistible she proceeded to conquer the world, and each stage of
conquest was the reduction of a vast portion of mankind to slavery.
30,000 Tarentines were sent as slaves to Rome by Fabius Cunctator,
the captor of Tarentum ; 150,000 Epirots by Paulus Aemilius, the
subjugator of Epirus. Julius Caesar retrieved his shattered fortunes
by enormous operations in the slave market during his campaign
in Gaul. Thus, unfortunately for the slave, the slave market was
continually glutted and slave life was cheap. The condition of the
slave gradually but slowly improved under the emperors. The
killing of the slave of another was not an offence under the lex
Cornelia de sicariis itself, but by the interpretation of later times
it was brought under this law. A lex Petronia of uncertain date,
but which must have been passed before the destruction of Pompeii,
A. D. 79, being mentioned in an inscription found there, required
a slave -owner to obtain the permission of a magistrate before
exposing a slave to be torn to pieces by wild beasts, and only
allowed such permission to be granted for some offence committed
by the slave, Dig. 48, 8, 11, 2. Claudius prohibited a master
killing his own slaves who fell sick, and enacted that the exposure
of a slave to perish in his sickness should operate as a manumission,
conferring Latinitas, Sueton. Claud. 25, Cod. 7, 6, 3. Hadrian is
said to have deprived proprietors of the power of putting slaves
to death without a judicial sentence, Spartian, Had. 18 (but see on
this Mommsen, Strafr., p. 617, n. 2). Antoninus Pius declared a
38 t)E PERSONIS [i. §§ 48-54.
master who killed his own slave to be responsible in the same way
as if he had killed the slave of another, cf. § 53, 3 § 213, i. e. guilty
of murder, and subject to the penalty of the lex Cornelia de sicariis.
We read in Justinian's Digest : Qui hominem occiderit punitur non
habita differentia cujus conditionis hominem interemit, Dig. 48, 8, 2.
The punishment was generally capital, Dig. 48, 8, 3, 5. It is to be
remembered, however, that none of these laws deprive the master
of the right of punishing his slaves himself for domestic offences.
Hadrian prohibited the castration of a slave, consenting or not con-
senting, under penalty of death, Dig- 48, 8, 4, 2. Antoninus Pius also
protected slaves against cruelty and personal violation, Dig. 1, 6, 2,
obliging the master, as we see by the text, to manumit them on
account of his maltreatment. The Digest, 1, 6, 1, quoting § 53,
after sine causa, interpolates, legibus cognita, thus placing slaves
under the protection of the law, and almost recognizing in slaves
some of the primordial rights of humanity, except that, as already
observed, obligation does not necessarily imply a correlative right.
Koman law to the end, unlike other legislations which have recog-
nized forms of slavery, refused to admit any rights in the slave.
Florentinus, however, not long after the time of Gaius, admitted
that slavery, though an institution of jus gentium, was a violation
of the law of nature. Servitus est canstitutio juris gentium qua
quis domino alieno contra naturam subicitur, Dig. 1, 5, 4. Ulpian
says the same : Quod attinet ad jus civile, servi pro nullis habentur,
non tamen et jure naturali ; quia quod ad jus naturale attinet, omnes
homines aequales sunt, Dig. 50, 17, 32. 'Before the Civil law a
slave is nothing, but not before the Natural law ; for in the eye of
Natural law all men are equal.' The belief in a Natural law, more
venerable than any Civil law, was very prevalent in the ancient
world, and one of the principal contributions of Philosophy to
civilization.
The absolute privation of all rights was sometimes expressed by
saying that a slave has no persona, caput, or status : e. g. Servos
quasi nee personam habentes, Nov. Theod. 1 7. Servus manumissus
capite non minuitur quia nullum caput habet, Inst. 1, 16, 4. Cum
servus manumittitur, quia servile caput nullum jus habet, ideo nee
minui potest, eo die enim incipit statum habere, Dig. 4, 5, 4. The
word ' persona,' however, is sometimes applied to slaves ; e. g. in
personam servilem nulla cadit obligatio, Dig. 50, 17, 22. So is caput
in the last but one of the above-quoted passages.
But though a Koman slave was incapable of being invested with
rights for himself, yet he often filled positions of considerable
importance both in public and private life and was allowed by his
owner to hold a considerable peculium. It was because slaves were
i. § 55.] DE PATRIA POTESTATE 39
ordinarily employed as procurators in commercial transactions,
that Eoman law failed to develop the principle of contractual
agency, as it is understood in modern systems of jurisprudence.
DE PATEIA POTESTATE.
§ 55. Item inpotestatenostra § 55. Again, a man has power
sunt liberi nostri quos iustis over his own children begotten
nuptiisprocreauimus. quodius i* civil wedlock, a right peculiar
premium ciuium Romanorum to citizens of Borne, for there is
estf fere enim nulli alii sunt f ff el? any other nation where
r ao'. . , . fll. fathers are invested with such
homines qu* talem m nhos r over their ^^ ag afc
suos habent potestatem qualem £Qme and ^ the kte Emperor
nos habemus; idque dinus Hadrian deciared in the edict he
Hadnanws edicto quod pro- published respecting certain peti-
posuit de his, qui sibi liberisque tioners for a grant of Roman citi-
suis ab eo ciuitatem Romanam zenship to themselves and their
petebant, significauit. nee me children ; though I am aware
praeterit Galatarum gentem that among the Galatians parents
credere in potestate parentum are invested with power over
liberos esse. Inst. l}9pr. their children.
§ 55. The most peculiar portion of the Roman law of status is
that which refers to patria potestas, or the relation of paterfamilias
to filiusfamilias. Patria potestas was founded on consuetudinary
law (cum jus potestatis moribus sit receptum, Dig. 1, 6, 8), and
may be considered under two heads, (1) as regarding the person
of the son, (2) as regarding proprietary rights acquirable by
the son.
1. Over the person of the child the father had originally a power
of life and death. Patribus jus vitae in liberos necisque potestas
olim erat permissa, Cod. 8, 47, 10. So the lex Pompeia de parri-
cidiis, enumerating the persons who could be guilty of parricide, or
the murder of a blood relation, omits the father, Dig. 48, 9. Com-
pare also the formula of Adrqgatio, §§ 97-107, commentary. But in
later times this power was withdrawn. Hadrian condemned to
deportation a father who in the hunting-field killed his son who
had committed adultery with his stepmother, Dig. 48, 9, 5. Con-
stantine, A.D. 319, included killing by a father under the crime of
parricide, Cod. 9, 17. Fathers retained the power of moderate
chastisement, but severe punishment could only be inflicted by the
magistrate, Cod. 8, 46, 3. Si atrocitas facti jus domesticae emen-
dationis excedat, placet enormis delicti reos dedi judicum notioni,
Cod. 9, 15. Trajan compelled a father to emancipate a son whom
he treated with inhumanity, Dig. 37, 12, 5. It was originally at
40 DE PERSONIS [i. § 55.
the option of the parent whether he would rear an infant or expose
it to perish, but in later times such exposure was unlawful, as
was declared by Valentinian, Valens, and Gratian, A. D. 374, Cod.
8, 51, 2.
Originally also parents had the power of selling (mancipandi)
their children into bondage, thus producing a capitis minutio, or
degradation of status. The patriarchs of the Roman race may
perhaps have been slave-dealers who, like some savage tribes in
Africa and elsewhere, trafficked in the bodies of their own children,
but we must note that the bondage into which a Roman father sold
his children was, at least at the time at which this institution is
known to us, a limited degree of subjection : the mancipation, which
if made three times released a son from his father's power according
to a provision of the Twelve Tables, could only be made to another
Roman citizen, and the bondsman continued to be liber and civis.
And this power also was withdrawn in more civilized times. A
law of Diocletian and Maximian, A.D. 294, declares the sale, dona-
tion, pledging of children to be unlawful, Cod. 4, 43, 1. A rescript
of one of the Antonines commences in the following terms, Cod.
7, 16, 1 : 'You are guilty, by your own admission, of an unlawful
and disgraceful act, as you state that you sold your freeborn
children.' Justinian increased the penalties of the law against
creditors who took possession of the freeborn child of a debtor
as a security for a debt. He enacted that the creditor should
forfeit the debt, should pay an equal sum to the child or parent,
and in addition should undergo corporal punishment, Novella,
134, 7. In the time of Gaius, the only genuine sale of a child into
bondage was in the case of noxal surrender, i. e. when a father sued
for the delict of a child, in lieu of damages, surrendered his delin-
quent son or daughter as a bondsman (mancipium) to the plaintiff,
§ 140. The sale of the child in adoption and emancipation was
merely fictitious ; even noxal surrender was practically obsolete
in the time of Justinian, by whom it was formally abolished,
Inst. 4, 8, 7. Constantine, however, A. D. 329, in cases of extreme
poverty permitted parents to sell their children immediately after
birth (sanguinolentos), and this constitution was retained in the
code of Justinian, Cod. 4, 43, 2.
2. In respect of property, filiusfamilias was capable of obligation
but not of right ; he could be debtor but not creditor ; in any
transaction where an independent person (sui juris) would have
been creditor, filiusfamilias was merely a conduit-pipe through
which a right vested in his father as creditor or proprietor. Even
in domestic relations filiusfamilias could only figure as inferior, not
as superior; he owed obedience, but could not exercise command
I. § 55.] DE PATRIA POTESTATE 41
(jus, in the special sense which it has in the phrases, sui juris, alieni
juris) ; he could only be an instrument by which his father acquired
a right of command. Thus, filiusfamilias had commercium, and
could take by mancipatio, but the property he thus took vested in
his father ; he could make a valid contract, but the contractual
right vested in his father ; he had testamentifactio, that is, he could
be witness, libripens, familiae emptor, but he could not make a will,
for he had no property to leave ; and if he took under a will as
legatee or heir, the legacy or succession vested in his father: cf. 2
§ 87, 3 § 163, comm. He had the other element of civitas, con-
nubium ; that is> he could contract a civil marriage and beget civil
children ; but the patria potestas over these children vested not in
the father but in the grandfather, and if the marriage was accom-
panied with power of hand (manus), marital power over the wife,
this vested not in the husband but in the husband's father. Any
property which the son was allowed by his father to manage was
called his peculium, i.e. was held on the same terms as property
which a slave administered by permission of his proprietor. In
respect of debts which he incurred, the son did not act as conduit-
pipe, but (except for a loan of money, which the Sc. Macedonianum
made irrecoverable) was liable in his own person, Dig. 44, 7, 39.
' A son under power incurs obligation by the same titles, and may
be sued on the same grounds of action as an independent person.'
The same rule applied to the son as to the slave: Melior conditio
nostra per servos fieri potest, deterior fieri non potest, Dig. 50, 17,
133. 'The melioration of his proprietor's condition is in the power
of a slave, but not the deterioration.'
In his public functions, filiusfamilias was entirely beyond the
sphere of patria potestas. Quod ad jus publicum attinet non sequitur
jus potestatis, Dig. 36, 1, 14. Thus, a son could act as praetor or
as judex in a suit to which his father was a party. He could
even preside as magistrate over his own adoption or emancipation :
Si consul vel praeses filiusfamilias sit, posse eum apud semetipsum
vel emancipari vel in adoptionem dari constat, Dig. 1, 7, 3 (which
makes it doubtful how far political functions were suspended
even by the state of mancipium or bondage). He could also
be appointed guardian (tutor), for guardianship (tutela) was held
to be a public function, Dig. 1 , 6, 9. 'A filiusfamilias in his public
relations is deemed independent, for instance, as magistrate or as
guardian.'
The above-stated incapacities of filiusfamilias were subject, how-
ever, to certain exceptions and modifications, which may now be
briefly considered.
a. In certain cases filiusfamilias had an anomalous right of suing
42 DE PERSONIS [i. § 55.
in his own name (suo nomine), i.e. not merely as procurator or
attorney of his father, and even in opposition to his father's
wishes, Dig. 44, 7, 9. 'A filiusfamilias can only, according to
Julian, sue in his own name for outrage, by interdict for violent
or clandestine disturbance, for a deposit, and for a thing he has
lent for use.' These suits, which, in spite of the statement in
the text, were not the only, though perhaps the oldest, actions
maintainable by a person under power, deserve a brief explana-
tion. Without the right to Honour, one of the primordial
rights of humanity, a man is scarcely a freeman, and, accordingly,
this right vests definitively in filiusfamilias, and does not again
pass out of him to vest in his father. Any dishonouring outrage,
therefore, gave filiusfamilias a right of bringing a civil action,
called actio injuriarum, in his own name, though the pater-
familias as a rule maintained the action both on his own account
and that of his son ; if, however, he was unable to do so, or his
character was dubious, the son could proceed by himself (cf. 3 § 221,
and Dig. 47, 10, 17, 10, &c.), although any pecuniary damages that
he thereby recovered, being in the nature of property, were recovered
for his father. The son under power was recognized, then, as
invested with a vindictive right, though not with a proprietary
right. The actio injuriarum was one in bonum et aequum concepta
(compare Dig. 47, 10, 11, 1, and Dig. 44, 7, 34 pr.), that is, the
terms of the formula (conceptio) directed the judex to assess the
damages not on any strict principle of law, but by his own.
sense of natural equity (aequum et bonum), and this form may
have helped to make the action maintainable by one who was
generally incompetent to sue. The interdict quod vi aut clam
was maintainable by filiusfamilias on the same principle as the
actio injuriarum, being a means of vindicating a dishonouring
outrage inflicted on filiusfamilias by some violent disturbance of real
immovable property in defiance of his prohibitio or summons to
stay operations and let the matter abide the result of a judicial trial.
Cf. 4 §§ 138-170, comm. On the same principle a filiusfamilias
disinherited or passed over in the will of his mother or maternal
grandfather, as such disinheritance or pretermission was an implied
imputation of turpitude or unworthiness and therefore dishonouring,
might without the consent of his father (Dig. 5, 2, 22 pr.) vindicate
his honour by impeaching the will of inofficiositas (immorality, or
want of natural affection), although such querela inofficiosi testa-
menti, being an action having a right to property for its object, would
not otherwise have been maintainable by a filiusfamilias. If the
plaintiff filiusfamilias could show that the disinheritance or omission
was not due to his own demerits, he invalidated the will by a
I. § 55.] DE PATKIA POTESTATE 43
fictitious presumption of the testator's lunacy and made the testator
intestate ; and thus filiusfamilias vindicated his own character, though
whatever share he recovered in the intestate succession vested in his
father. Cf. 2 §§ 152-173, comm. ; Inst. 2, 18.
The right of filiusfamilias to sue by actio commodati or depositi
was founded on a different principle. Suppose that filiusfamilias
had borrowed or hired a thing that he afterwards lent or deposited ;
his father, not being responsible for his son's debts, would not be
interested in the recovery of the thing, and therefore was not
entitled to sue the depositary or borrower : the soil, however, would
be answerable to the original lender or letter, and accordingly was
allowed to sue in his own name. To avoid, however, contravening
the civil law by affirming a proprietary right vested in a filiusfami-
lias, he did not sue by a formula in jus concepta, i. e. of the form, si
paret oporte,re, 'if the plaintiff establish a right,' but by a formula
in factum, of the form, si paret factum esse, ' if the plaintiff establish
a fact.' It is remarkable that Gaius instances precisely the actio
commodati and the actio depositi as having two forms, one in jus
and another in facturA (4 § 47) ; and we may conjecture that the
latter was invented to be used under these very circumstances by
filiusfamilias.
&. The latter periods of Eoman law present a gradual emanci-
pation of filiusfamilias by successive inventions of new kinds of
peculium. As early as the time of Augustus filiusfamilias was
allowed to dispose freely by will of his earnings in military service,
castrense peculium, which came to be treated in all respects as his
individual property, except that till the time of Justinian the rules
of intestate succession did not apply to it. Filiifamilias in castrensi
peculio vice patrumfamiliarum funguntur, Dig. 4, 6, 2, Subsequently
to the time of Gaius, under Constantine and his successors, the earn-
ings of filiifamilias in the civil service of the State, in holy orders, in
the liberal professions, were assimilated to their earnings in the army,
and came to be called peculium quasi castrense. Further, in the time
of Constantine, it was also established that whatever came to the
son from his mother or, as the law was under Justinian, from the
maternal line, or from any source but the paternal estate (ex re
patris), should be acquired for the father, and held by him only as a
usufruct or life estate, while, subject to this, the son had the owner-
ship of it (peculium adventicium). Peculium adventicium thus
included everything acquired by the son whiph was not castrense
peculium, nor quasi-castrense peculium, nor acquired by means of
the father's property (ex re patris). Only this latter peculium
derived from the paternal estate continued, under the name of
peculium profecticium, subject to the old rules, and belonged in
44
DE PERSONIS
[i. §§ 56-64.
absolute property to the father. Cf. 2 § 87, comm. ; Inst. 2, 9, 1 ; 3,
19, 6; 4, 8, 7; 3, 10, 2, 28 pr.
The Gallic race, of which the Galatians were a branch, are men-
tioned by Caesar as having the institution of patria potestas: Viri
in uxores, sicuti in liberos, vitae necisque habent potestatem, De
Bello Gall. 6, 19. St. Paul in his Epistle to the Galatians may
perhaps allude to the peculiarity of their law : ' The heir, as long as
he is a child, differeth nothing from a servant (slave), though he be
lord of all' ; 4, 1, though the Apostle seems to be directly referring
to the cognate institution of guardianship.
NVPTIIS.
§ 56. I ,1 si
ciues Romanas uxores duxerint,
uel etiam Latinas peregrinasue
cum quibus conubium habeani ;
cum enim conubium id etiiciat,
ut liberi patris condicionem
sequantur, euenit ut non
(solum} ciues Romani fiant,
sed etiam in potestate patris
sint. Inst. 1,10 pr.
§ 57. Unde et ueteranis qui-
busdam concedi solet princi-
palibus constitutionibus conu-
bium cum his Latinis pere-
grinisue quas primas post
missionem uxores duxerint ; et
qui exeo matrimonio nascuntur,
et ciues Romani et in potestate
parentum fiunt.
§ 58. | Non tamen omnes
nobis uxores ducere licet ; \ nam
a quarundam nuptiis abstinere
debemus ; Inst. 1. c.
§ 59. inter eas enim per-
sonas quae parentum libero-
rumue locum inter se optinent
nuptiae contrahi non possunt,
nee inter eas conubium est,
ueluti inter patrem et filiam,
uel inter matrem et filium, uel
inter auum et neptem; et si
§ 56. A Roman citizen contracts
civil wedlock and begets children
subject to his power when he
takes to wife a citizen of Rome
or a Latin or alien with whom a
Roman has capacity of civil wed-
lock ; for as civil wedlock has the
effect of giving to the children the
paternal condition, they become
by birth not only citizens of
Rome, but also subject to the
power of the father.
§ 57. And for this purpose vete-
rans often obtain by imperial con-
stitution a power of civil wedlock
with the first Latin or alien
woman they take to wife after
their discharge from service, and
the children of such marriages
are born citizens of Rome and
subject to paternal power.
§ 58. But it is not any woman
that can be taken to wife, for
some marriages are prohibited.
§ 59. Persons related as ascend-
ent and descendent are incapable
of lawful marriage or civil wed-
lock, father and daughter, for in-
stance, mother and son, grand-
father and granddaughter ; and if
such relations unite, their unions
are called incestuous and ne-
farious; and so absolute is the
I. §§ 56-64.]
DE NVTTIIS
45
tales personae inter se coierint,
nefarias et incestas nuptias
contraxisse dicuntur. et haec
adeo ita- sunt, ut quamuis per
adoptionem parentum libero-
rumue loco sibi esse coeperint,
non possint inter se matrimonio
coniungi, in tantum, ut etiam
dissoluta adoptione idem iuris
maneat ; itaque earn quae mihi
per adoptionem filiae aut neptis
loco esse coeperit non potero
uxorem ducere, quamuis earn
emancipauerim. Inst. 1. c.
§ 60. Inter eas quoque per-
sonas quae ex transuerso gradu
cognatione iunguntur est quae-
dam similis obseruatio, sed non
tanta.
§ 61. Sane inter fratrem et
sororem prohibitae sunt nuptiae,
siue eodem patre eademque ma-
tre nati fuerint, siue alter utro
eorum : sed si qua per adoptio-
nem soror mihi esse coeperit,
quamdiu quidem constat ado-
ptio, sane inter me et earn
nuptiae non possunt consis-
tere ; cum uero per emancipa-
tionem adoptio dissoluta sit,
potero earn uxorem ducere ;
sed et si ego emancipatus
fuero, nihil inpedimento erit
nuptiis.
§ 62. Fratris filiam uxorem
ducere licet, idque primum in
usum uenit, cum diuus Claudius
Agrippinam fratris sui filiam
uxorem duxisset; sororis uero
filiam uxorem ducere non licet,
et haec ita principalibus co-nsti-
tutionibus significantur. Item
amitam et materteram uxorem
ducere non licet.
Inst. 1,10,3-5.
§ 63. Item earn quae mihi
quondam socrus aut nurus aut
priuigna aut nouerca fuit. ideo
rule that merely adoptive as-
cendents and descendents are
for ever prohibited from inter-
marriage, and dissolution of the
adoption does not dissolve the
prohibition : so that an adoptive
daughter or granddaughter can-
not be taken to wife even after
emancipation.
§ 60. Collateral relatives also
are subject to similar prohibi-
tions, but not so stringent.
§61. Brother and sister, indeed,
are prohibited from intermarriage
whether they are born of the same
father and mother or have only
one parent in common: butthough
an adoptive sister cannot, during
the subsistence of the adoption,
become a man's wife, yet if the
adoption is dissolved by her
emancipation, or if the man is
emancipated, there is no impedi-
ment to their intermarriage.
§ 62. A man may marry his
brother's daughter, a practice first
introduced when Claudius married
his brother's daughter Agrippina,
but may not marry his sister's
daughter, a distinction laid down
in imperial constitutions, nor may
he marry his father's sister or his
mother's sister.
§ 63. He may not marry one
who has been his wife's mother
or his son's wife or his wife's
46
DE PERSONIS
[i. §§ 56-64,
autem diximus ' quondam,' quia
si adhuc constant eae nuptiae,
per quas tails adfinitas quaesita
est, alia ratione mihi nupta
esse non potest, quia neque
eadem duobiis nupta esse potest,
neque idem duas uxores habere.
Inst. 1, 10, 6.
§ 64. Ergo si quis nefarias
atque incestas nuptias con-
traxerit, neque uxorem habere
uidetur neque liberos ; itaque
hi qui ex eo coitu nascuntur
matrem quidem habere uiden-
tur, patrem uero non utique:
nee ob id in potestate ems
(sunt, sed tales} sunt quales
sunt hi quos mater uulgo con-
cepit ; nam et hi patrem habere
non intelleguntur, cum is etmm
incertus sit ; unde solent spurii
filii appellari, uel a Graeca uoce
quasi (nropabrjv concepti, uel
quasi sine patre filii.
Inst. 1, 10, 12.
daughter or his father's wife. I
say, one who has been so allied,
because during the continuance of
the marriage that produced the
alliance there would be another
impediment to the union, for a
man cannot have two wives nor
a woman two husbands.
§ 64. A man who contracts a
nefarious and incestuous marriage
is not deemed to have either a
wife or children ; for the offspring
of such a union are deemed to
have a mother but no father,
and therefore are not subject to
paternal power ; resembling chil-
dren born in promiscuous inter-
course, who are deemed to have
no father, because their true father
is uncertain, and who are called
bastards either from the Greek
word denoting illicit intercourse
or because they are fatherless.
In any treatise on the law of marriage that we open we shall
meet the expression, the marriage contract ; and this suggests the
inquiry, is marriage a contract, and, if so, to which class of Roman
contracts, Verbal, Literal, Real, Consensual, 3 § 89, is Roman
marriage to be referred? Most writers assume that it was a Con-
sensual contract, on the strength of texts like the following : Nuptias
non concubitus sed consensus facit, Dig. 35, 1, 15. 'Marriage does
not depend on cohabitation, but on consent.' Ortolan, however,
remarks that consensual contracts could be formed by absent con-
tractors, Inst. 3, 22, 2, whereas a marriage could not be contracted
in the absence of the wife, Paul, 2, 19, 8 ; and shows that, besides
the consent of the parties, delivery of possession of the wife to the
husband was required, from which he infers that Roman marriage
was not a Consensual but a Real contract. It is true that marriage
might be contracted in the absence of the husband ; but this was
only under certain conditions, Dig. 23, 22, 5. 'A man in his
absence may marry by letter or message, provided the woman is
led to his house : a woman in her absence cannot marry by letter
or message, for the leading must be to the husband's house, as the
domicile of the married pair.' And precisely the same conditions
I. §§ 56-64] DE NVPTIIS 47
were sufficient in other cases to constitute delivery of possession,
Dig. 41, 2, 18, 2. 'If a vendor deposit any article in my house by
my order, I have possession of it though I have never touched
it.' Consensus, then, in the above-quoted passage, is not opposed
to delivery of possession, but to cohabitation, or to the use of
certain words or certain documents, or to the solemn and grace-
ful ceremonial with which custom surrounded the matrimonial
union.
Eeal contracts, however, are executory on one side and executed
on the other, whereas in the conjugal relation both parties are on
the same footing in respect of execution ; and we may ask whether
marriage is a contract at all ; whether it does not rather fall under
the opposite category of alienation or conveyance. Instead of finding
its analogon in locatio-conductio or societas (consensual contracts)
or pignus or commodatum (real contracts), may we not rather, with
Savigny, find it in transfer of dominion or other creations of real
right, such as adoption, the concession of patria potestas, or emanci-
pation ? This seems the truer view, and if we use the expression,
marriage contract, we must use the term contract not in a specific
sense, as opposed to conveyance, but in the generic sense of
bilateral disposition (as opposed to unilateral disposition, e.g. testa-
tion), a sense embracing both contract proper and conveyance, and
extending beyond the sphere of Property into the relations of
domestic life. Contract proper and conveyance, though generally
contrasted in jurisprudence, have much in common. If contract
in its narrower sense is defined to be the concurrence of two
manifestations of will creating a jus in personam, and conveyance
the concurrence of two manifestations of will creating a jus in
rem, the concurrence of two manifestations of will creating a jus
is an element common to both terms of the comparison, and this
common element may be denominated in a generic sense a con-
tract. Contract in the narrower sense may then be distinguished
as an obligative contract and conveyance as a translative contract,
and the latter head will include the contract of marriage, if we
continue to employ this expression.
As in respect of property or dominion we find in Eoman law the
distinction of Quiritary and Bonitary, that is, of civil and gentile,
ownership, so in respect of the conjugal relation we find the distinc-
tion of Roman or civil marriage (connubium, justae nuptiae, justum
matrimonium) and gentile marriage (nuptiae, matrimonium), of
which the former alone was valid at civil law (connubium est uxoris
jure ducendae facultas, Ulpian, 5, 3 ; ' connubium is the capacity of
marriage valid by civil law ') and capable of producing patria potestas
and agnatio, though the latter produced legitimate children (justi
48 DE PERSONIS [i. §§ 56-64.
as opposed to naturales liberi) and cognatio or natural relation-
ship.
Capacity of civil marriage (connubium) is (a) absolute and (&)
relative. (a) Only citizens have the absolute capacity of civil
marriage, and such Latins and aliens as are specially privileged,
§ 56 : slaves are incapable both of civil and gentile marriage.
(6) Capacity of civil marriage is, however, always relative to another
person who forms the other party to the union. A citizen only
has connubium with a citizen or with such Latins and aliens
as are specially privileged ; and, before the lex Papia Poppaea
was passed, a freeborn citizen (ingenuus) had no connubium
with a citizen by manumission (libertinus). Lege Papia cavetur
omnibus ingenuis, praeter senatores eorumque liberos libertinam
uxorem habere licere, Dig. 23, 2, 23. 'The lex Papia permits all
freeborn citizens, except senators and their children, to marry freed-
women.'
§§ 58-63. The prohibition of marriage between collateral rela-
tions, originally perhaps extended as far as there were legal names for
the relationship, i. e. as far as the sixth degree, for Tacitus mentions
that second cousins were once incapable of intermarriage, sobrinarum
diu ignorata matrimonia, Ann. 1 2, 6 ; and Livy (20, see Hermes, 4, 372),
in a fragment discovered by Krueger, expressly says that marriage
was once restricted within this limit. ' P. Coelius patricius primus
ad versus veterem morem intra septimum cognationis gradum duxit
uxorem. Ob hoc M. Eutilius plebeius sponsam sibi praeripi novo
exemplo nuptiarum dicens sedicionem populi concitavit adeo, ut
patres territi in Capitolium perfugerent ' (cf. Karlowa, Rom. Rechtsg.,
p. 175) ; but though marriages within this limit may still have been
regarded as contrary to religion (fas), the law (jus) was gradually
relaxed. The prohibition was subsequently reduced to the fourth
degree, i. e. to the intermarriage of first cousins (consobrini), Ulpian,
5, 6, with this restriction, however, that if one of the collaterals was
only removed by one degree from the common ancestor (stipes com-
munis), he was regarded as a quasi ascendent (loco parentis) and
incapable of intermarriage at any degree : thus, a man could not
marry his brother's or sister's granddaughter, though only related
in the fourth degree, Cod. 5, 4, 17. Degrees in the direct line were
reckoned by counting the generations or births to which a person
owed his descent from an ancestor : thus, a man is one degree from
his father, two from his grandfather : in the transverse or collateral
line, by adding the degrees which separate each collateral from the
common stock; thus, a man is two degrees from his sister, three
from his niece.
Constantinus, A. D. 355, restored the ancient law and prohibited
1. §§ 65-75.] DE ERRORIS CAVSAE PROBATIONE 49
marriage with a brother's daughter as incestuous, Cod. Theod.
3, 12, 1.
Affinity (affinitas) is the relationship of a person to the kin
(cognates) of a spouse. The husband is allied to the kin of the wife,
the wife to the kin of the husband ; but there is no alliance between
the kin of the husband and the kin of the wife. The following are
some of the names given to these relationships. In the ascending
line the father and mother of the wife or husband are socer and
socrus (father-in-law, mother-in-law), and in relation to them the
husband of the daughter and wife of the son are gener and nurus
(son-in-law, daughter-in-law). In the descending line the children
of the spouse are privignus and privigna (step-son, step-daughter),
and in relation to them the husband of the mother and the wife of
the father are vitricus and noverca (step-father and step-mother).
In the collateral line the husband's brother is levir (brother-in-law),
the husband's sister is glos (sister-in-law). Intermarriage with affines
in the direct line, or their ascendents or descendents, was absolutely
prohibited ; collateral alliance appears to have been no impediment
in the time of Gaius, but at a later period marriage with a deceased
brother's wife or a deceased wife's sister was forbidden, Cod. Theod.
2, 3, 12; Cod. 5, 5, 5.
To the marriage of a filius- or filia-familias the consent of the
father was required : but if he withheld it without a reason he
could be compelled by the magistrate to give it, and, in the case of
a daughter, to provide a dower, Dig. 23, 2, 19: one of several in-
stances in which, as the condition of the validity of a title, when
a voluntary action could not be obtained, the legislator substituted
a compulsory action, instead of simply declaring the action unne-
cessary. See § 190, comm.
DE ERKOKIS CAVSAE PROBATIONE.
§ 65. I Aliquando autem § 65. It sometimes happens
euenit ut liberi qui ttatim ut that children when first born are
7ia|ti sunt parentum in pote- not in their father's power, but
state non fiant, ii postea tamen are subsequently brought under
redigantur in potestatem. ik
Inst. 1,10,13.
§ 66. Veluti^si Latinua ex § 66> Thus, under the lex Aelia
lege Aelia Sentia uxore ducta sentia a Latin who marries and
tilium procreauerit aut Latinum begets a son of Latin status by
ex Latina aut ciuem Romanum a Latin mother, or a citizen of
ex ciue Romana, non habebit Eome by a Eoman mother, has
eum in potestate ; sed si postea, not power over him ; but on proof
causa probB,i&ius{Qui'ritiurtiy of his case as required by the
50
DE PEESONIS
[i. §§65 -75.
consecitfats fuerit, simul eum in
potestate sua habere incipit.
§ 67. Item si ciuis Romanus
Latinam autperegrinamuxorem
duxerit per ignorantiam, cum
earn ciuem Romanam esse cre-
deret, et filium procreauerit,
hie non est in potestate eius,
quia ne qmdem ciuis Romanus
est, sed aut Latinus aut pere-
grinus, id est eius condicionis
cuius et mater fuerit, quia non
aliter quisque ad patris con-
dicionem accedit, quam si inter
patrern et matrem eius conu-
bium sit; sed ex senatuscon-
sulto permittitur causam erroris
probare, et ita uxor quoque et
films ad ciuitatem Romanam
perueniunt, et ex eo tempore
incipit filius in potestate patris
esse. idem iuris est, si earn per
ignorantiam uxorem duxerit
quae dedi^ciorum numero est,
nisi quod uxor non fit ciuis
Romana.
§ 68. Item si ciuis Romana
per errorem nupta sit peregrine
tamquam ciui Romano, per-
mittitur ei causam erroris pro-
bare, et ita filius quoque eius
et maritus ad ciuitatem Ro-
manam perueniunt, et aeque
simul incipit filius in potestate
patris esse. idem iuris est, si
peregrine tamquam Latino ex
lege Aelia Sentia nupta sit ;
nam et de hoc specialiter se-
natusconsulto cauetur. idem
iuris est aliquatenus, si ei qui
deditficiorum numero est tam-
quam ciui Romano aut Latino
e lege Aelia Sentia nupta sit ;
nisi quod scilicet qui dediti-
ciorum numero est, in sua con-
dicione permanet, et ideo filius,
quamuis fiat ciuis Romanus,
statute, he becomes a Roman citi-
zen along with his son, who is
henceforth subject to his power.
§ 67. Again, if a Roman citizen
marry a Latin or an alien woman,
in a mistaken belief that she is a
Roman citizen, the son whom he
begets is not in his power, not
indeed being born a Roman citi-
zen, but a Latin or an alien, that
is to say, of the same status as his
mother, for a child is not born
into the condition of his father
unless his parents had capacity
of civil marriage : but a senatus-
consult allows the father to prove
a cause of justifiable error, and
then the wife and son become
Koman citizens, and the son is
thenceforth in the power of the
father. The same relief is given
when a Roman citizen under a like
misconception marries a freed-
woman having the status of a
surrendered foe, except that the
wife does not become a Roman
citizen.
§ 68. Again, a female Roman
citizen who marries an alien, be-
lieving him to be a Roman citizen,
is permitted to prove a cause of
justifiable error, and thereupon
her son and husband become Ro-
man citizens, and simultaneously
the son becomes subject to the
power of his father. Similar relief
is given if she niarry an alien as
a Latin intending^) comply with
the conditions of the lex Aelia
Sentia, for this case is specially
provided forinthesenatusconsult.
Similar relief is given to a certain
extent if she many a freedman
having the status of a surrendered
foe instead of a Roman citizen,
or instead of a Latin, whom she
intended to marry according to
the provision of the lex Aelia
Sentia, except that the freedman
i; §§ 65-75.] DE ERRORIS CAVSAE PROBATIONE 51
in potestatem patris non redi-
gitur.
§ 69. Item si Latina pere-
grino, cum eum Latinum esse
crederet, (e lege Aelia Sentia}
nupserit, potest ex senatuscon-
sulto filio nato causam erroris
probare, et ita omnes fiunt
ciues Romani et films in pote-
state patris esse incipit.
S 70. Idem constitutum est,
• T •
si Latinus per errorem pere-
grinam quasi Latinam aut
ciuem Romanam e lege Aelia
Sentia uxorem duxerit.
§ 71. Praeterea si ciuis
Romanus, qui se credidisset
Latinum esse, ob id Latinam
(uxorem duxerit}, permittitur
ei filio nato erroris causarn pro-
bare, tamquam (si) e lege
Aelia Sentia uxorem duxisset.
Item his qui cum ciues Romani
essent, peregrinos se esse credi-
dissent et peregrinas uxores
duxissent, permittitur ex se-
natusconsulto filio nato causam
erroris probare ; quo facto fiet |
uxor ciuis Rom ana et films
non solum ad cmi£a]tem Ro-
manam peruenit, sed etiam in
potestatem patris redigitur.
§ 72. Quaecumque de filio
esse diximus, eadem et de filia
dicta intellegemus.
§ 73. Et quantum ad erroris
causam probandam attinet,
nihil interest cuius aetatis filius
sit | 1 1 — , si minor
anniculo sit filius filiaue, causa
probari | non potest. nee me
praeterit in aliquo rescripto
diui Hadriani ita esse consti-
husband continues of the same
status, and therefore the son,
though he becomes a Eoman citi-
zen, does not fall under paternal
power.
§ 69. Also a Latin freed woman
married according to the provision
of the lex Aelia Sentia to an alien
whom she believed to be a Latin,
is permitted by the senatuscon-
sult, on the birth of a son, to prove
a cause of justifiable error, and
thereupon they all become Roman
citizens, and the son becomes
subject to paternal power.
§ 70. Exactly the same relief is
given if a Latin freedman mis-
takenly marry an alien woman
believing her to be a Latin f reed-
woman, or a Roman citizen,
when he intended to comply with
the lex Aelia Sentia.
§ 71. Further, a Roman citizen
who marries a Latin freed woman,
believing himself to be a Latin, is
permitted on the birth of a son to
prove the cause of his mistake as
if he had married according to the
provisions of the lex Aelia Sentia.
So, too, a Roman citizen, who
marries an alien, believing him-
self to be an alien, is permitted
by the senatusconsult on the birth
of a son to prove the cause of the
mistake, and then the alien wife
becomes a Roman citizen, and the
son becomes a Roman citizen and
subject to the power of the father.
§ 72. Whatever has been said
of a son applies to a daughter.
§ 73. And as to the proof of the
cause of error, the age of the son
or daughter is immaterial, except
that, if the marriage was con-
tracted with an intention to satisfy
the requirements of the lex Aelia
Sentia, the child must be a year
old before the cause can be proved.
E 2
52
DE PERSONIS
[i. §§65-75.
tutum, tamquam quocZ ad er-
roris quoque \ causam pro-
bandam 1 1 im-
perator dedit.
§ 74 (Bed) si peregrinus
ciuem Romanam uxorem du-
xerit, an ex senatusconsulto
causam prepare possit, quae-
situm est, probare \ causam
non potest, quamuis ipse
— | hoc ei specialiter concessum
est. sed cum peregrinus ciuem
Romanam uxorem duxisset et
filio nato alias ciuitatem Ro-
manam consecutus esset, deinde
cum quaereretur, an causam
probare posset, rescripsit im-
peratorAntoninusproindeposso
eum causam probare, atque si
peregrinus mansisset. ex quo
colligimus etiam peregrinum
causam probare posse.
§ 75. Ex his quae diximus
apparet, siue ciuis Romanus
peregrinam siue peregrinus
ciuem Romanam uxorem du-
xerit, eum qui nascitur pere-
grinum esse. sed siquidem per
errorem tale matrimonium con-
tractum fuerit, emendari uitium
eius ex senatusconsulto licet
(secundum} ea quae superius
diximus. si uero null us error
interuenerit, (sedy scientes
suam condicionem ita coierint,
nullo casu ememfatur uitium
euts matrimonii.
I am aware that a rescript of the
late Emperor Hadrian speaks as
if it was a condition of proof of
the cause of error that the son
must be a year old, but this is to
be explained by the particular
circumstances of the case in which
this rescript was granted.
§ 74. It is a question whether an
alien, who has married a Roman
wife, can prove cause of error
under the S. C. But when an
alien, believed to be a Roman
citizen, married a Roman wife,
and subsequently to the birth of a
son acquired Roman citizenship,
on the question arising whether
he could prove the cause of error,
a rescript of Antoninus Pius de-
cided that he was just as com-
petent to prove as if he had con-
tinued an alien : from which may
be gathered that an alien is com-
petent to prove the cause of error.
§ 75, Hence it appears that a
person born in marriage is an
alien if his father was a Roman
citizen and his mother an alien,
or if his father was an alien and
his mother a Roman citizen,
though if the marriage was con-
tracted under a mistake, a remedy
is supplied by the S. C. as above
explained. No relief is given in
any case, where the parties did
not contract marriage under an
error, but were aware of their
condition.
Mistake or error sometimes conferred a right which a party
could not have acquired if he had not acted under a mistake. Thus,
the lender of money to a filiusfamilias without the father's consent
had no legal claim to recover, unless he lent believing the borrower
to be independent (sui juris), and possession could not mature by
usucapion into ownership, unless it had a bona fide inception, i.e.
I. §§ 76-87.] DE STATV LIBERORVM
53
unless it commenced in an honest misunderstanding. The relief of
error had similarly important results in questions of status. Erroris
causam probare seems to mean 'to make good a title by error/
i. e. to establish, as title (causa) to relief, a probabilis error or justa
ignorantia ; i. e. a mistake not due to negligence ; for negligence
would exclude from relief.
The subjection of a child to patria potestas by erroris causae
probatio operated to invalidate a previously executed will, like the
subsequent birth (agnatio) of a child in civil wedlock (suus postu-
mus), 2 § 142.
DE STATV LIBERORVM.
§ 76. Loquimur autem de
his scilicet, {inter} quos conu-
bium non sit ; nam alioquin
si ciuis Romanus peregrinam
cum qua ei conubium est uxo-
rem duxerit, sicut supra quoque
diximus, iustum matrimonium
contrahiiur ; et tune ex his qui
nascitur ciuis Romanus est et
in potestate patris erit.
§ 77. Item si ciuis Romana
peregrine, cum quo ei conu-
bium est, nupserii, peregrinum
sane procreatf et is iustus patris
filius est, tamquam si ex pere-
grina eum procreasset. hoc
tamen tempore (ex) senatus-
consulto, quod auctore diuo
Hadriano factum est, etiamsi
non fuerit conubium inter
ciuemRomanam et peregrinum,
qui nascitur iustus patris filius
est.
§ 78. Quod autem diximus
inter ciuem Romanam pere-
grinurnque qui \ nascitur
peregrinum esse, lege Minicia
c&uetur,( ) jest, ut a
parentis condicionem sequatur.\
eadem lege enim ex diuerso
cauetur, ut si peregrinam, cum
qua ei conubium non sit, uxo-
rem duxerit ciuis Romanus,
§ 76. It is to be remembered
that we are speaking of a marriage
between persons who have not
the capacity of entering into a
civil marriage with one another.
When, however, a Roman citizen
takes to wife an alien privileged as
I described (§ 56), he contracts
a civil marriage, and his son is
born a Roman citizen and subject
to his power.
§ 77. So if a female Roman
citizen many an alien with whom
she has capacity of civil marriage,
her son is an alien and a lawful
son of his father, just as if his
mother had been an alien. At
the present day, by a senatus-
consult passed on the proposition
of the late Emperor Hadrian, even
without civil marriage the off-
spring of a Roman woman and
alien is a lawful son of his father.
§ 78. The rule we have stated
that when a female Roman citizen
marries an alien, the offspring is
an alien, if there is no capacity of
civil marriage between them, is
enacted by the lex Minicia, which
also provides that when a Roman
citizen marries an alien woman,
and there is no capacity of civil
marriage between them, their off-
spring shall be an alien. This
54
DE PERSONIS
[r.§§ 76-87.
peregrinus ex eo coitu nascatur.
sed hoc maxime casu necessaria
lex Minicia ; nam remota ea
lege diuersam condicionem
sequi debebat, quia ex eis,
inter quos non est conubium,
qui nascitur iure gentium
matris condicioni accedit. qua
parte autem iubet lex ex cine
Romano et peregrina pere-
grinum nasci, superuacua uide-
tur; nam et remota ea lege
hoc utique iure gentium | fu-
turum erat.
§ 79. Adeo autem hoc ita
est, ut 1 1 •
iion | solum exterae nationes et
gentes, sed etiam qui Latini
nominantur ; sed ad alios
Latinos pertinet qui proprios
populos propriasque ciuitates
habebant et erant peregrinorum
numero.
§ 80. Eadem ratioue ex con-
trario ex Latino et ciue Romana,
siue ex lege Aelia Sentia siue
aliter contractum fnerit matri-
monium, ciuis Romanus nasci-
tur. fuerunt tamen qui puta-
uerunt ex lege Aelia Sentia
contracto matrimonio Latinum
nasci, quia uidetur eo casu per
legem Aeliam Sentiam et
luniam conubium inter eos
dari, et semper conubium efficit,
ut qui nascitur patris condi-
cioni accedat ; aliter uero con-
tracto matrimonio eum qui
nascitur iure gentium matris
condicionem sequi et ob id
esse ciuem Romanum. sed hoc
iure utimur ex senatusconsulto,
quo auctore diuo Hadriano
significatur, ut quoquo modo
ex Latino et ciue Romana
special enactment was required in
the first case, as otherwise the
child would follow the condition
of the mother ; for when there
is no capacity of civil marriage
between parents, their offspring
belongs to the condition of his
mother by jus gentium. But the
part of this law which ordains
that the offspring of a Roman
citizen and an alien Woman is an
alien seems to be superfluous,
since* without any enactment this
would be so under the rule of
jus gentium.
§ 79. Somuchsothatitisunder
this rule of jus gentium that the
offspring of a Latin freedwoman
byaRoman citizen with whom she
has no capacity of civil marriage
is a Latin, since the statute did
not refer to those who are now
designated Latins ; for the Latins
mentioned in the statute are
Latins in another sense, Latins
by race and members of a foreign
state, that is to say, aliens.
§ 80. By the same principle,
conversely, the son of a Latin
and a Roman woman is by birth
a Roman citizen, whether their
marriage was contracted under
the lex Aelia Sentia or otherwise.
Some, however, thought that if
the marriage was contracted in
accordance with the lex Aelia
Sentia, the offspring is a Latin
by birth, because on this hypo-
thesis the lex Aelia Sentia and
Junia confer a capacity of civil
marriage, and a civil marriage
always transmits to the offspring
the status of the father: if the
marriage was otherwise contract-
ed, they held the offspringacquires
by jus gentium the status of his
mother. However, the law on
this point is now determined by
the senatusconsult passed on the
proposition of the late Emperor
r. §§ 76-87.] DE STATV LIBERORVM
55
natus ciuis Romanus nasca-
tur.
§ 81. His omuenienter etmm
illud senatuseonsultum diuo
Hadriano auctore significauit,
ut (qui) ex Latino et pere-
grina, item contra (qui) ex
peregrino et Latina nascititr,
is matris condicionem sequatur.
§ 82. Illud quoque his con-
sequens est, quod ex ancilla
et libero iure gentium seruus
nascitur, et contra ex libera et
seruo liber nascitur.
§ 83. Animaduertere tamen
debemus, ne iuris gentium regu-
lam ue£ lex aliqua uel quod
legis uicem optinet, aliquo casu
commutauerit.
§ 84. Ecce enim ex senatus-
consulto Claudiano poterat
ciuis Romana quae alieno seruo
uolente domino eius coiit, ipsa
ex pactione libera permanere,
sed seruum procreare ; nam
quod inter earn et dominum
istius serui conuenerit, eo se-
natusconsulto ratum esse iu-
betur. sed postea diuus Ha-
drianus iniquitate rei et inele-
gantia iuris motus restituit
iuris gentium regulam. ut cum
ipsa mulier libera permaneat,
liberum pariat.
§ 85. (Item e lege }
ex aTicilla et libero poterant
liberi nasci ; nam ' ea lege
cauetur, ut si quis cum aliena
ancilla quam credebat liberam
esse coierit, siquidem mascuft
nascantur, liberi sint, si uero
feminae, ad euro, pertineafit
cuius mater aTicilla fuerit. sed
et in hac specie diuus Vespa-
sianus inelegantia iurie motus
Hadrian, which enacts that the
son of a Latin and a Koman
woman is under every hypothesis
a Roman citizen.
§81. Consistently here with Ha-
drian's senatusconsult provides
that the offspring of the marriage
of a Latin freedman with an alien
woman or of nn alien with a
Latin freedwoman follows the
mother's condition.
§ 82. Consistently herewith the
offspring of a female slave and a
freeman is by jus gentium a slave,
the offspring of a freewoman and
a slave is free.
§ 83. We must observe, how-
ever, whether the jus gentium
in any given instance is overruled
by a statute or ordinance having
the authority of a statute.
§ 84. For instance, the Sc. Clau-
dianum permitted to a female citi-
zen of Rome having intercourse
with a slave with his owner's
consent, to continue herself in
virtue of the agreement free,
while she gave birth to a slave,
her agreement to that effect with
the owner being made valid by the
senatusconsult. Subsequently,
however, the late Emperor Ha-
drian was induced by the injustice
and anomaly of the ordinance to
re-establish the rule of jus gen-
tium, that as the mother continues
free the offspring follows her
status.
§ 85. By a law (the name of
tvJiich is unknown] the offspring
of a female slave by a freeman
might be free, for that law pro-
vided that the offspring of a free-
man by another person's female
slave whom he believed to be free
shall be free if they are male, but
shall belong to their mother's
proprietor if they are female:
but here too the late Emperor
Vespasian was moved by the
56
DE PERSONIS
[i. §§76-87.
restituit iuris gentium regulam,
ut omni modo, etiamsi masculi
nascantur, serui sint eius cuius
et mater fuerit.
§ 86. Sed ilia pars eiusdem
legis salua est, ut ex libera et
seruo alieno, quern sciebat
seruum esse, serui nascantur.
itaque apud quos talis lex non
est, qui nascitur iure gentium
matris condicionem sequitur et
ob id liber est.
§ 87. Quibus autem casibus
matris et non patris condi-
cionem sequitur qui nascitur,
isdem casibus in potestate eum
patris, etiamsi is ciuis Romanus
sit, non esse plus quam mani-
festum est. et ideo superius
rettulimus quibusdam casibus
per errorem non iusto contracto
matrimonio senatuminteruenire
et emendare uitium matrimonii,
eoque modo plerumque efficere,
ut in potestatem patris filius
redigatur.
§§ 76, &c. The rules relating to the status of the offspring of parents
of unequal status are at first sight chaotic and bewildering, but they
are reducible to a few canons. The most general canon is the rule
of jus gentium, that children follow the condition of the mother.
This is subject to two exceptions.
1. Children born in civil wedlock follow the condition of the
father. Cf. §§ 88, 89, 94.
2. Children born in gentile (lawful) wedlock of a Eoman mother
and alien father follow the condition of the father: this was a
special enactment of the lex Minicia.
These rules are stated in the following passages : Lex naturae
haec est ut qui nascitur sine legitimo matrimonio matrem sequatur
nisi lex specialis aliud inducat, Dig. 1, 5, 24. 'By the law of
nature children not born in civil wedlock follow the status of the
mother, in the absence of a special statute to the contrary.' Con-
nubio interveniente liberi semper patrem sequuntur: non inter-
veniente connubio, matris condition! accedunt, excepto eo qui ex
anomalous character of the rule
to re-establish the canon of jus
gentium, and declared that the
offspring in every case, whether
male or female, should be slaves
and the property of their mother's
owner.
§ 8 6. But another clause of that
law continues in force, providing
that the offspring of a freewoman
by another person's slave whom
she knows to be a slave are born
slaves, though where this law is
not established the offspring by
jus gentium follow the mother's
condition and are free.
§ 87. When the child follows
the mother's condition instead of
the father's, it is obvious that he
is not subject to the power of
the father, even though the father-
is a Roman citizen : but in some
cases, as I mentioned above (§67),
when a mistake was the occasion
of a non-civil marriage being con-
tracted, the senate interferes and
purges the defect of the marriage,
and this generally has the effect of
subjecting the son to the power
of the father.
I. §§ 88-92.] DE STATV LIBERORVM 57
peregrine et cive Romana peregrinus nascitur, quoniam lex Minicia
(in MS. Mensia) ex alterutro peregrine natum deterioris parentis
conditionem sequi jubet, Ulpian, 5, 8. 'In civil wedlock the
children have the status of the father, in the absence of civil
wedlock of the mother ; except that the children of an alien father
and Roman mother are aliens, as the lex Minicia makes the children
aliens when either parent is an alien.'
The Sc. Claudianum introduced some special enactments respect-
ing the intercourse of freewomen with slaves, which, however, were
subsequently abolished.
a. If a freewoman had intercourse with a slave with the consent
of his proprietor she retained her freedom, though degraded to the
class of a freedwoman, but her issue was the slave of the proprietor.
The slavery of the issue was abolished by Hadrian. § 84.
b. If a freewoman persisted in intercourse with the slave of another
person against the will and in spite of the prohibition of the pro-
prietor, after three denunciations on his part she was awarded to him
by the magistrate as a slave, and her issue, whether born before or
after the adjudication, became slaves of the same person, who also
acquired her estate by a species of universal succession. Cf. §§91,
160. This terroristic law, which, from the minuteness with which
the details are developed (Paulus, 2, 21), appears to have been often
applied, was not abrogated till the time of Justinian, Inst. 3, 12, 1 .
c. If a freeman had intercourse with a slave whom he supposed
to be free by a law the title of which is lost, but which possibly may
be the Sc. Claudianum, her male children were born into freedom.
This relief of error was abolished by Vespasian as anomalous
(inelegans), § 85.
§ 80. There was some ground for the view that a marriage
under the lex Aelia Sentia, because it was statutory (regulated
by statute), was therefore a civil marriage ; and we may regard the
senatusconsult of Hadrian, which denied its civil character, as not
purely declaratory.
§ 88. Sed si ancilla ex ciue § 88 if a female slave conceive
Romano concepmt, delude by a Eoman citizen and become
manumissa cmis Romana facta herself by manumission a Roman
sit et tune pariat, licet ciuis citizen before giving birth toa son,
Rowawus sit qui nascitur, sicut her son, though a Roman citizen
pater eius, non tamen in pote- like his father, is not in his father's
state patris est, quia neque ex power, because he was not be-
iusto coitu conceptus est ne- gotten in civil wedlock, and there
que ex ullo senatusconsulto is no senatusconsult which cures
tails coitus quasi iustus con- the defect of the intercourse in
stituitur. which he was begotten.
58
DE PERSONIS
[i. §§ 88-92.
§ 89. Quod autem placuit, si
ancilla ex ciue Romano con-
ceperit, deinde manumissa
pepererit. qui nascitur liberum
nasci, -natural! ratione fit ; nam
hi qui illegitime concipiuntur,
statum suniunt ex eo tempore
quo nascuntur ; itaque si ex
libera nascuntur, liberi fiunt,
nee interest ex quo mater eos
conceperit, cum ancilla fuerit ;
at hi qui legitime concipiuntur
ex conceptionis tempore statum
sumuni.
§ 90. Itaque si cm mulieri
ciui Romanae praegnati aqua
et igni interdictum fuerit, eoque
modo peregrina i'acta tune
pariat, conplures distinguurit et
puta-nt, siquidem ex iustis nup-
tiis conceperit, ciuem Romanum
ex ea nasci, si uero uulgo con-
ceperit, peregrinum ex ea nasci.
§ 91. Item si qua mulierciuis
Romana praegnas ex senatus-
consulto Claudiano ancilla facta
sit ob id, quod alieno seruo
inuito et denuntiante domino
eius (coierif), conplures distin-
(/itunt et existimant, siquidem
ex iustis nuptiis concepts sit,
ciuem Romanum ex ea nasci,
si uero uulgo conceptus sit,
seruum nasci eius cuius mater
facta esset ancilla.
§ 92. Peregrina quoque si
uulgo conceperit, deinde ciuis
Romana {fiat} et tune pariat,
ciuem Romanum parit ; si uero
ex peregrine secundum leges
moresque peregrinorum con-
ceperit, ita uidetur ex sena-
tusconsulto quod auctore
diuo Hadriano factum est
ciuem Romanum parere, si et
patri eius ciuitas Romana do-
§ 89. The decision that when a
female slave conceives by aEoman
citizen and is manumitted before
childbirth, her offspring is born
free, is a rule of natural law ; for
in illegitimate or non-civil con-
ception the status of the offspring
depends on the moment of birth,
and the mother's freedom at the
moment of birth makes the off-
spring free, and the status of the
father is immaterial; but in
statutory or civil conception the
status of the child is determined
by the time of conception.
§ 90. Accordingly, if a female
citizen of Eome being pregnant is
interdicted from fire and water,
and becoming thus an alien gives
birth to a child, many jurists
distinguish and hold that her
offspring is a Roman citizen if
begotten in civil wedlock, but if
in promiscuous intercourse, an
alien.
§ 91. So if a female citizen of
Eome being pregnant is reduced to
slavery under the Sc. Claudianum
for having intercourse with a slave
in spite of the dissent and de-
nunciation of his owner, many
jurists make a distinction and
hold that her offspring, if con-
ceived in civil wedlock is a citizen
of Rome, if conceived in illicit
intercourse is a slave of the person
who becomes proprietor of the
mother.
§ 92. Also if an alien woman
conceive in illicit intercourse and
afterwards becomes a Roman citi-
zen and gives birth to a child, the
child is a Roman citizen ; but if
she conceived by an alien, to
whom she was married in accord-
ance with alien laws and customs,
it seems that upon Hadrian's
senatusconsult her offspring is
only born a Roman citizen, if the
father also has acquired the Roman
citizenship.
T. §§ 88-92.] DE STATV LIBERORVM 59
Supposing the status of a parent changes during the period of
gestation (if, for instance, the mother is a slave at the time of
conception and free at the time of birth), what effect has this on
the status of the issue ? The following rule was adopted : in cases
where the child follows the status of the father, that is, when it is
begotten in civil marriage, the status of the father at the time of
conception determines the status of the child ; where the child
follows the status of the mothei', that is, when it is begotten in
gentile marriage or in promiscuous intercourse, the status of the
child is determined by the status of the mother at the moment of
birth. Ulpian, 5, 1 0. ' Children born in civil wedlock have their
status fixed at the time of conception ; children born out of civil
wedlock have their status fixed at the time of delivery.' That is to
say, the legal position of the issue is made to follow the analogy of its
physical condition. The physical influence of the father terminates
with conception : his subsequent health, life, or death, does not
affect the physical state of the child ; but the child is affected by
every change in the physical condition of the mother, her health,
life, or death, up to the moment of birth. In imitation of this
analogy, the status of the child, when it depended on the status of
the father, was not affected by any change in that status subsequent
to the period of conception ; but when it depended on the status of
the mother it varied with every change in that status up to the
moment of birth. By the time of Gaius, though the change is not
mentioned in the text, this rule was modified in favour of liberty,
and it was established that if the mother was free either at
the date of conception or at the date of birth or at any interme-
diate period, the issue was born free. Si libera conceperit et ancilla
facta peperit, liberum parit, id enim favor libertatis exposcit. Si
ancilla conceperit et medio tempore manumissa sit, rursus facta ancilla
peperit, liberum parit, media enim tempora libertati prodesse, non
nocere etiam possunt, Paulus, 2, 24, 2. Cf. Inst. 1, 4 pr.
§ 88. The issue of a mother who was a slave at the date of con-
ception but is a citizen at the date of birth, though it is born a
Roman citizen, is not subject to patria potestas, because it does not
satisfy the definition in § 55, liberi quos justis nuptiis procreavimus,
'a child begotten in civil wedlock.'
§ 90. Aquae et ignis interdictio was originally a permission to avoid
punishment under the penal code by voluntary exile. Subsequently
it was employed as a punishment, and under the emperors assumed
the form of deportatio in insulam. It was attended with confiscation
of goods, and involved loss of ci vitas but not of libertas, §§ 128, 161.
§ 92. The offspring of a wedded mother who was an alien at the
date of conception and is a citizen at the date of birth, according
60
DE PERSONIS
[i. §§93-96.
to the general rule of jus gentium, should be born a Roman citizen ;
but this would contravene the above-mentioned lex Minicia, which
enacted that the issue of a marriage is an alien whenever either
parent is an alien, § 78.
§ 93. Si peregrinus sibi
liberisque suis ciuitatem Ro-
man am petierit, non aliter filii
in potestate eius Hent, quam si
imperator eos in potestatem
redegerit ; quod ita demum is
facit, si causa cognita aesti-
mauerit hoc filiis expedire.
diligentius autem exactiusque
causam cognoscit de inpuberi-
bus absentibusque ; et haec ita
edicto diui Hadriani signifi-
ca?itur.
§ 94. Item si quis cum
uxore praegnate ciuitate Ro-
mana donatus sit, quamuis is
qui nascitu?', ut supra diximus,
ciuis Romanus sit, tamen in
potestate patris non fit ; idque
subscriptione dim Hadriani
significatur ; qua de causa qui
intellegit uxorem suam esse
praegnatem, dum ciuitatem sibi
et uxori ab imperatore petit,
simul ab eodem petere debet,
ut eum qui natus erit in pote-
state sua habeat.
§ 95. Alia causa est eorum
qui Latii iure cum liberis suis
ad ciuitatem Romanam per-
ueniunt ; nam horum in pote-
state fiunt liberi. quod ius qui-
busdam peregrinis ciuitatibus
datum est uel a populo Romano
uel a senatu uel a Caejsare.
§96.
aut maius est
Lati|um aut minus: maius est
Latium, cum et hi qui decu-
riones leguntur et ei qui hono-
rem aliquem aut magistratum
gerunt ciuitatem Romanam
§ 93. If an alien has obtained
by petition for himself and his
children a grant of Roman citi-
zenship, the children do not fall
under the power of the father
except by express ordinance of
the emperor, which he only makes
if, on hearing the facts of the
case, he deems it expedient for
the interest of the children, and
he makes a still more careful and
minute inquiry if they are below
the age of puberty and absent, as
an edict of the Emperor Hadrian
intimates.
§ 94. Also if an alien and his
pregnant wife receive a grant of
Roman citizenship, the child,
though a Roman citizen, as above
mentioned, is not born in the
power of his father according to
a rescript of the late Emperor
Hadrian ; wherefore, if he knows
his wife to be pregnant, an alien
who petitions the emperor for
Roman citizenship for himself
and his wife ought at the same
time to petition that his son may
be subjected to his power.
§ 95. The rule is different for
those who with their children are
made Roman citizens by right
of Latinity, for their children fall
under their power ; this right
has been conceded to certain alien
states either by the Roman people,
or by the senate or by the
emperor.
§ 96. The right of Latinity is
either greater or lesser. Greater
Latinity is the right whereby those
who are chosen decuriones or hold
some high office or magistracy ac-
quire Roman citizenship : lesser
T. §§ 93-96.] DE STATV LIBERORVM 61
consecuntur ; minus Latium est, Latinity is when only those who
cum hi tantum qui magistra- are magistrates or hold high office
turn uel honorem gerunt ad acquire Eoman citizenship, a
ciuitatemRomanamperueniunt: distinction intimated by several
idqueconpluribusepistulisprin- imperial rescripts.
cipum significatur.
The grant of civitas was either made to communities or to
individuals. It was a lucrative source of revenue to the emperors.
The fees to be paid were not small, Acts of the Apostles, 22, 28,
and the new-made civis was regarded as a manumitted slave of the
emperor, and was expected to remember the emperor in his will.
The philosophic emperor, Marcus Aurelius, under whom Gaius
flourished, granted Eoman citizenship to all who were ready to
pay the fees, data cunctis promiscue civitas Romana, Aurelius
Victor, 16. Antoninus Caracalla, A.D. 212-217, after raising from
one-twentieth to one-tenth the tax on manumissions and the testa-
mentary succession and legacy duty, which was only levied on
Roman citizens, exhausted for a time this source of revenue by
conferring at a stroke Roman citizenship on every free subject
of the empire : In orbe Romano qui sunt ex constitutione impera-
toris Antonini cives Romani effecti sunt, Dig. 1, 5, 17. This was
not a general manumission of slaves nor an abolition of the status of
Latin or alien, but a grant of citizenship to all existing Latins
and aliens, imposing in effect a capitation tax on the individuals,
and leaving those orders to be again replenished by subsequent
manumissions of Latini and dediticii. The value of the privileges
of civis Romanus was gradually declining. The political portions
of civitas had been extinguished by the establishment of the empire,
and Rome was destined at last to undergo the fate she had inflicted
on so many other cities. She was sacked by Alaric, king of the
Goths, A. D. 410. She was entered by Genseric, king of the Vandals,
and, after a sack of fourteen days, left a heap of ruins, A.D. 455.
The splendour of the title of civis Romanus was sadly dimmed before
Justinian made it acquirable by every form of manumission.
§ 94. Subscriptio was an imperial rescript written under the peti-
tion to which it was an answer : a rescript written on a separate
document was called epistola. The latter was addressed to public
functionaries, the former to private individuals, and by its connexion
with the petition enabled a tribunal to which it was submitted
to investigate the truth of the allegations on which it was founded.
Cf. § 5, comm. ; and see Roby, Private Law, Intr. p. 6, n. 2.
The grant of patria potestas by the Emperor to the new-made
citizen, § 93, may be assimilated to the legislative grant of patria
potestas in adrogatio. Its different effects may be compared with
62 DE PERSONIS [i. §§ 97-107.
the incidents of Naturalization and Denization in English law.
Naturalization formerly only effected by act of parliament is retro-
spective, and puts an alien in exactly the same state as if he
had been born in the king's ligeance, and his son born before
the naturalization may inherit : whereas the issue of a Denizen
(an alien born who has obtained ex donatione regis letters patent
to make him an English subject) cannot inherit to him, but his
issue born after may. Blackstone.
§§ 95, 96. Before the recension of the text by Studemund Gaius
was supposed to have denned greater Latinity in this section as the
right whereby the magistrates of certain towns acquire the Roman
franchise along with their wives and children, and lesser Latinity
as the right whereby the magistrates themselves acquire the Eoman
franchise, but not their wives and children. The distinction made
by Gaius between these two kinds of Latinity is not found in any
other writer (cf. note to Muirhead's Gaius, h. 1.).
The name of a senate in a municipality was ordo decurionum
or simply ordo or curia, its members being decuriones or curiales.
The office of decurio, which was at one time a coveted distinction,
became very burdensome ; and in order to make it more acceptable,
privileges were from time to time attached to it, as e.g. Latium
majus, and in later times legitimatio per oblationem curiae (Inst.
1, 10, 13). (Dig. 50, 2 de decurionibus.)
It is to be noticed that the jus Latii could, according to Gaius, § 95,
be constitutionally granted in three ways, either by the people itself
(in Comitia), or by the senate (representing the people), or by the
Emperor (in whom the power of the people was to a great extent vested).
DE ADOPTIONIBVS.
§ 97. I Non solum tamen §97. Not only natural children
naturales liber i secundum ea are subject, as mentioned, to pa-
quae \ diximus in potestate ternal power, but also adoptive
nostra sunt, uerum et hi quos children,
adoptamus. Inst. 1, 11 pr.
§ 98. Adoptio autem duobus § 98. Adoption is of two forms,
modis fit, aut populi auctori- adoption by authority of the
tate, aut imperio magistratus, people and adoption by the
ueluti praetoris. executive command of a magis-
Inst 1111 trate, as of the praetor.
§99. Populi auctoritateadop- § 99p Authority of the people
tamus eos qui sm mris sunt; is required for the adoption of
quae species adoptioms dicitur an independent person, and this
adrogatio, quia et is qui adoptat form is called adrogation, be-
rogatur, id est interrogatur, an cause the adopter is interrogated
uelit eum quern adoptaturus sit whether he wishes to have the
I. §§ 97-107.]
DE ADOPTIONIBVS
63
iustum sibi filium esse ; et is
qui adoptatur rogatur an id
fieri patiatur; et populus ro-
gatur an id fieri iubeat. im-
perio magistratus adoptamus
eos qui in potestate parentum
sunt, siue primum gradum li-
berorum optineant, qualis est
filius et filia, siue inferiorem,
qualis est nepos neptis, prone-
pos proneptis. Inst. 1. c.
§ 100. Et quidera ilia adop-
tio quae per populum fit nus-
quain nisi Romae fit ; at haec
etiam in prouinciis apud prae-
sides earum fieri solet.
1. Item per populum
IP • i
/lemmae non adoptantur, nani
jid magis placuit ; apud prae-
korem uero uel in prouinciis
apud proconsulem legatumue
etiam feminae solent adoptari.
§ 102. Item inpuberem apud
populum adoptari aliquando
prohibitum est, aliquando per-
missum est ; nunc ex epistula
optimi imperatoris Antonini
quam scripsit pontificibus, si
iusta causa adoptionis esse ui-
debitur, cum quibusdam condi-
cionibus permissum est. apud
praetorem uero et in prouinciis
apud proconsulem legatumue
cuiuscumque aetatis( personas")
adoptare possumus.
Inst. 1,11,3.
§ 103. Ill-ud utriusque adop-
tionis commune est, quod et
hi qui generare non possunt,
person adopted for his lawful
son, the person adopted is inter-
rogated whether he thereto con-
sents, and the people (in comitia)
is interrogated whether such is
its command. The executive
command of a magistrate is the
proceeding for the adoption of a
person subject to the power of
an ascendent, whether a de-
scendent in the first degree, as
a son or daughter, or in a re-
moter degree, as a grandson or
granddaughter, great-grandson or
great-granddaughter.
§ 100. Adoption by vote of
the people (in comitia) can only
be solemnized at Borne, the
other process is usually effected
in the provinces in the court of
the president.
§ 101. Adoption by vote of the
people is inapplicable to females,
as has finally been ruled ; but
females may be adopted by the
other mode of adoption, at Koine
in the court of the praetor, in pro-
vinces of the people it is usually
effected in the court of the pro-
consul, in provinces of the em-
peror in the court of the legate.
§ 102. The legislative adoption
of a child below the age of
puberty by vote of the people
was at one time prohibited, at
another permitted ; at the present
day, by the epistle of the Em-
peror Antoninus addressed to the
pontifices, on evidence of a just
cause of adoption, it is permitted,
subject to certain conditions. In
the court of the praetor at Rome,
in the court of the proconsul in
a province of the people, and
in the court of the legate in a
province of the emperor, a person
of any age may be adopted.
§ 103. Both forms of adoption
agree in this point, that per-
sons incapable of procreation by
DE PERSONIS
[i. §§ 97-107.
quales sunt spadones, adoptare
possunt. Inst. 1, 11,9.
§ 104. Feminae uero nullo
modo adoptare possunt, quia ne
quidem naturales liberos in
potestate habent.
Inst. 1,11,10.
§ 105. Item si quis per po-
pulum siue apud praetorem
uel apud praesidem prouinciae
adoptauerit, potest eundem alii
in adoptionem dare.
§ 106. Sed et ilia quaestio,
an minor natu maiorem natu
adoptare possit, utriusque ad-
optionis communes est.
§ 107. Illud proprium est
eius adoptionis quae per popu-
lum fit, quod is qui liberos in
potestate habet, si se adro-
gandum dederit, non solum ipse
potestati adrogatoris subicitur,
sed etiam liberi eius in eiusdem
fiunt potestate tamquam ne-
potes. Inst. 1,11,11.
natural impotence are permitted
to adopt.
§ 104. Women cannot adopt
by either form of adoption, for
even their natural children are
not subject to their power.
§ 105. He who has adopted a
person either by the vote of the
people or by the authority of
the praetor or of the president
of a province, can transfer his
adoptive son to another adoptive
father.
§ 106. Whether a younger-
person can adopt an older is a
disputed point in both forms of
adoption.
§ 107. It is peculiar to adoption
by the vote of the people that
children in the power of the
person adrogated, as well as their
father, fall under the power of the
adrogator, assuming the position
of grandchildren.
Adrogation, or the adoption of an independent person (pater-
familias), reducing him to a dependent status (filiusfamilias), was a
legislative act of the Comitia Curiata ; but though, as representing
the people, this assembly was legally omnipotent, it was unconstitu-
tional to deprive a person either of the citizenship or of domestic
independence without his own consent. We learn from Cicero
the formula by which this assent was ascertained. De Domo, 29.
' As it is an immemorial rule of law that no citizen of Kome shall be
deprived of the independent position of paterfamilias or of citizenship
against his will, as you have had occasion of learning by your own ex-
perience, for I suppose that, illegal as your adrogation was in all points,
you at least were asked whether you consented to become subject to
the adrogator's power of life and death as if you were his son ; — if
you had opposed or been silent, and the thirty Curiae had neverthe-
less passed the law, tell me, would their enactment have had any
binding force ? ' The form in which the law was proposed to the
legislative assembly is given by Gellius, 5, 19. 'Adrogation is
the subjection of an independent person with his own consent to the
power of a superior, and is not transacted in the dark or without
I. §§ 97-107.] DE ADOPTIONIBVS 65
investigation. The Comitia Curiata, at which the College of Pon-
tiffs is present, are convened, and examine whether the age of the
adrogator does not rather qualify him for the natural procreation of
children, and whether the estate of the adrogatus is not the object
of fraudulent cupidity, and an oath, said to be framed by Q. Mucius,
the high pontiff, has to be taken by the adrogator. . . . Adroga-
tion, the name given to this transmit into a strange family, is
derived from the interrogation of the legislative body, which is in
the following form : ' May it please you to will and command that
L. Valerius shall be as completely by law and statute the son of
L. Titius as if he were born of L. Titius and his wife, and that
L. Titius shall have power of life and death over L. Valerius as
a father has over his son. Do you will and command as I have
said, Quirites?' Those who voted in affirmation of the measure
proposed said (at least in other similar assemblies) : Uti rogas ; those
who voted against it said : Antique. Women were originally in-
capable of being adrogated, § 101, because they were incapable of
appearing in the Comitia Curiata, Quoniam cum feminis nulla comi-
tiorum communio est, Gellius, ibid. ; but this incapacity vanished
as soon as the lex Curiata, as form of adrogation, was superseded by
imperial rescript (principale rescriptum), Gaius in Dig. 1, 7, 21.
Women, being incapable of exercising parental power, could not,
properly speaking, adrogate, § 104 ; but they were permitted, under
Diocletian A.D. 291, by quasi adrogation to establish the same legal
relation as existed between a mother and her natural children, Cod.
8, 48, 5; Inst. 1, 11, 10. An adrogator was usually required to be
sixty years old, Dig. 1, 7, 15, 2, and to be eighteen years (plena
pubertate) older than adrogatus, Inst. 1, 11, 4. Originally a youth
must have attained the age of puberty before he could be adrogated,
§ 102, and Gellius, ibid. : Sed adrogari non potest nisi jam vesticeps
. . . quoniam tutoribus in pupillos tantam esse auctoritatem pote-
statemque fas non est, ut caput liberum fidei suae commissum alienae
ditioni subiciant. ' A youth cannot be adrogated before he has
assumed the toga virilis, because a guardian has no authority or
power to subject an independent person, with whose charge he is
entrusted, to the domination of a stranger.' The purple-edged praetexta
was generally laid aside by boys along with the bulla aurea which
they wore round their neck, on the first Liberalia, the 17th March,
Ovid, Fasti, 3, 771, after the completion of their fourteenth year.
Females did not lay aside the praetexta till their marriage. Anto-
ninus Pius permitted the adrogation of youths below the age of
puberty (impubes, investis) under certain conditions ; e. g. the adro-
gator entered into a stipulation, originally with a public slave, in
later times with a public notary (tabularius), in the event of the
WH1TTUCK
66 DE PERSONIS [i. §§ 108-115 6.
death of adrogatus before the age of puberty, to restore his estate
to his natural heirs, and, in the event of emancipation, to adrogatus
himself: and adrogatus became entitled to a fourth part of the
estate of adrogator (called quarta Antonini), of which he could not
be deprived by disinherison or by unmerited emancipation, § 102 ;
cf. Inst. 1, 11, 3. In the time of Justinian the adrogator only
acquired a usufruct for life in the property, subject to which the
adrogatus was owner of it ; that is to say, the property of adrogatus
was transformed by adrogation into peculium adventicium. Cf.
3, 84, comm.
The form of simple adoption is explained below, § 134, under the
head of dissolution of patria potestas, for as patria potestas is vested
by adoption in the adoptive father, so it is divested from the natural
father.
The effect of adoption was much reduced by a constitution of
Justinian. If the adoption was by an ascendent, maternal or
paternal, it retained its old character : but if it was by a stranger
it neither created nor extinguished patria potestas ; it did not
transfer the adopted son from his old family into a new family, and
therefore it neither destroyed nor created any tie of agnation : its
only effect was to give to the adopted son, in the event of intestacy,
a claim against the estate of the intestate adoptive father ; Cod. 8,
47, 10 ; Inst. 1, 11, 2 and 3, 1, 14.
DE MANY.
§ 108. Nunc de his per- § 108. Let us next proceed to
sonis uideamus quae in manu consider what persons are subject
nostra sunt. quod \ et ipsum to the hand, which also relates
ius proprium ciuium Roma- to law quite peculiar to Roman
norum est. citizens.
§ 109. Sed in potestate qui- § 109. Power is a right over
dem et masculi et feminae males as well as females: hand
esse solent ; in manum autem relates exclusively to females,
feminae tantum cowueniunt.
§ 110. Olim itaque fribus § no. In former days there
modis in manum conueniebant, were three modes of becoming
usu farreo coemptione. subject to hand, use, confarrea-
tion, coemption.
§ 111 Usu in manum con- §ul Uge inyested the husband
uemebat quae anno continue with right of hand after a whole
nuptaperseuerabat; qmaernm year of unbroken cohabitation,
ueluti annua possessions usuca- guch annual possession operated
piebatur, in familiam uiri trans- a kind of usucapion, and brought
ibat filiaeque locum optinebat. the wife into the family of the
itaque lege XII tabularum cau- husband, where it gave her the
I. §§ 108-115 &.]
DE MANY
turn est, ut si qua nollet eo
modo in manum raariti con-
uenire, ea quotannis trinoctio
abesset atque eo modo (usum)
cuiusque anni interrumperet.
sed hoc totuua ius partim legi-
bus sublatum est, partim ipsa
desuetudine oblitteratum est.
§ 112. Farreo in manum con-
ueniunt per quoddam genus
sacrificii, quod loui Farreo fit ;
in quo farreus panis adhibetur,
unde etiam confarreatio dicitur;
conplura praeterea huius iuris
ordinandi gratia cum certis et
sollemnibus uerbispraesentibus
decem testibus aguntur et fiunt.
quocZ ius etiam nostris tempori-
bus in usu est ; nam flamines
maiores, id est Diales Martiales
Quirinales, item reges sacro-
rum nisi ex farreatis nati -non
leguntur ; ac ne ipsi quidem
sine confarreatione sacerdotium
habere possunt.
§ 113. Coemptione uero in
manum conueniunt per manci-
pationem, id est per quandam
imaginariam uenditionem ; nam
adhibitis non minus quam V
testibus ciuibus Romanis pube-
ribus, item libripende, emit is
mulierem, cuius in manum con-
uenit.
§ 114. fotest autem coem-
ptionem facere mulier non so-
lum cum marito suo, sed etiam
cum extraneo ; scilicet aut ma-
trimonii causa facta coemptio
dicitur aut fiduciae ; quae enim
cum marito suo facit coem-
ptionem, (u£) apud eum filiae
status of a daughter. Accordingly,
the law of the Twelve Tables
provided that a wife who wished
to avoid subjection to the hand
of the husband should annually
absent herself three nights from
his roof to bar the annual usuca-
pion : but the whole of this law
has been either partly abolished
by statute, or partly obliterated
by mere disuse.
§ 112. Confarreation, another
mode in which subjection to
hand originates, is a sacrifice
offered to Jupiter Farreus, in
which they use a cake of spelt,
whence the ceremony derives its
name, and various other acts and
things are done and made in the
solemnization of this disposition
with a traditional form of words,
in the presence of ten witnesses :
and this law is still in use, for
the functions of the greater
flamens, that is, the flamens of
Jove, of Mars, of Quirinus, and
the duties of the ritual king, can
only be performed by persons
born in marriage solemnized by
Confarreation. Nor can such per-
sons themselves hold a priestly
office if they are not married by
Confarreation.
§ 113. In coemption the right
of hand over a woman attaches
to a person to whom she is con-
veyed by a mancipation or imagi-
nary sale : for the man purchases
the woman who comes into his
power in the presence of at least
five witnesses, citizens of Kome
above the age of puberty, besides
a balance holder.
§ 114. By coemption a woman
may convey herself either to a
husband or to a stranger, that is to
say there are two forms of coemp-
tion, matrimonial and fiduciary.
A coemption with a husband in
order to acquire the status of
daughter in his house is a matri-
F a
68
DE PERSONIS
[i. §§108-1156.
loco sit, dicitur matrimonii
causa fecisse coemptionem ;
quae uero alterius rei causa
facit coemptionem aut cum
uiro suo aut cum extraneo,
ueluti tutelae euitandae causa,
dicitur fiduciae causa fecisse
coemptionem :
§ 115. quod est tale: si qua
uelit quos habet tutores depo-
nere et alium nancisci, illis auc-
toribus coemptionem facit ; de-
inde a coemptionatore reman-
cipata ei cui ipsa uelit, et ab
eo uindicta manumissa incipit
eum habere tuforem, (a) quo
manumissa est ; qui tutor fidu-
ciarius dicitur, sicut inferius
appare6it.
monial coemption: a coemption
for another purpose, whether with
a husband or with a stranger, for
instance, for avoiding a guardian-
ship, is a fiduciary coemption.
§ 1 1 5. This is accomplished by
the following process : the woman
who desires to set aside her
present guardians and substitute
another makes a coemption of
herself to some one with their
sanction : thereupon the party to
this coemption remancipates her
to the person intended to be sub-
stituted as guardian, and this
person manumits her by the form
of vindicta, and in virtue of this
manumission becomes her guar-
dian, being called a fiduciary
guardian, as will hereafter be
explained.
§ 1 1 5 a. In former times testa-
mentary capacity was acquired by
fiduciary coemption, for no woman
was competent to dispose of her
property by will, with the excep-
tion of certain persons, unless she
had made a coemption, and had
beenremancipated andthenmanu-
mitted: but this necessity of co-
emption was abolished by a sena-
tusconsult made on the motion of
Hadrian, of divine memory.
§ 1 15 &. Even if a woman makes
only a fiduciary coemption with
her husband, she acquires the
status of his daughter, for it is
held that from whatever cause
a woman is in the hand of her
husband, she acquires the position
of his daughter.
In early Eoman law a woman on marriage necessarily passed out
of her own agnatic family into that of her husband, taking the place
of a filiafamilias in it. If her husband was paterfamilias, she
came into his hand, if he was filiusfamilias into that of his father.
This power (manus) was the same in its nature as patria potestas.
§ 115 a. Olim etiam testa-
menti faciendi gratia fiduciarm
fiebat coemptio ; tune enim non
aliter feminae testamenti fa-
ciendi ius habebant, exceptis
quibusdam personis, quam si
coemptionem fecissent remanci-
pataeque et manumissae fuis-
sent : sed hanc necessitatem
coemptionis faciendae ex aucto-
ritate diui Ha|driani senatus
remisit.
§ 1 15 b. 1 femina >
fi|duciae causa cum mro suo
fecerit coemptionem, nihilo mi-
nus filiae loco incipit esse ; nam
si omnino qualibet ex causa
uxor in manu uiri sit,
earn filiae iura nancisci.
i. §§108-115 6.] DE MANY 69
By manus the husband, or the husband's father, had power of life and
death over the wife, Livy, 39, 18 ; Tac. Ann. 1 3, 32 ; and all the property
of the wife, even more absolutely than by the common law of English
jurisprudence, vested in the husband or his paterfamilias, 2 § 98.
The patriarchs of the Koman nation could probably not conceive
of the conjugal union as disjoined from manus. Yet at a very early
period of Roman history these were recognized as separable, and in
later times they were almost universally dissociated, and wedlock
was unaccompanied by manus. In a marriage celebrated without
confarreation and without coemption before the expiration of the
first year of cohabitation, there was civil wedlock without manus, and
the Twelve Tables provided a method (trinoctio abesse) by which this
state could be indefinitely prolonged, §111: and as soon as gentile
marriages were recognized by the law the Romans were still more
familiarized with the spectacle of lawful matrimony without manus.
As the ages advanced the wife acquired more and more indepen-
dence ; manus was almost obsolete in the time of Gaius, and it has
quite vanished from the legislation of Justinian. (For a detailed
account of the law of marriage see Sohm, pp. 470-498.)
Confarreation was a form of marriage which made the issue
eligible for certain high sacerdotal functions, and may therefore be
regarded as characteristic of the patrician caste. Originally it prob-
ably produced marital power in its full extent ; but when Augustus,
B. c. 10, after a vacancy of seventy-five years, renewed the priesthood
of Jove (flaminium diale) he limited by statute the legal effect of
confarreation in that particular instance, § 136; and Tiberius, A.D. 23,
extended the limitation to all future cases of confarreation, Tac.
Ann. 4, 1 6. Henceforth it only operated a change of family in respect
of sacred rites (sacra): the woman ceased to have the domestic gods
and domestic worship of her father, and took in exchange the
domestic gods and domestic worship of her husband. But in
secular matters her family was unchanged : she remained, if filia-
familias, subject to patria potestas, and did not become quasi filia-
familias in the household of her husband : her old ties of agnation
in her father's family were not snapped, and no new ties of agna-
tion in her husband's family were acquired. Divorce (diffarreatio,
Festus, s.v.) was almost impossible, and this indissol ability of the
connexion contributed to the unpopularity of confarreatio. More-
over, it was a religious ceremonial, requiring the presence of the
pontifex maximus and flamen dialis, and as such it vanished with
vanishing paganism. The ten witnesses apparently represented the
ten curiae of which the tribe was composed, or the ten gentes of
which the curia was composed, or, if the decimal division continued
further, the ten families of which the gens was composed.
70 DE PERSONIS [i. §§ 108-115 b.
The purchase of the wife by the husband, a widespread custom in a
primitive state of society, was no doubt one of the ways in which Koman
marriage originated. The exact nature of Coemption, in consequence
of the defective state of the Veronese manuscript, must, however,
remain a mystery. Coemption was a form of mancipation, § 113, but
in virtue of the provision of the Twelve Tables, Cum nexum faciet
mancipiumque, uti lingua nuncupassit, ita jus esto, the nature of every
mancipation depended on the mancipii lex, the accompanying nuncu-
pation or verbal declaration of its condition, intentions, purposes ; as
in English conveyancing the nature of a grant is limited and deter-
mined by the habendum and tenendum of the deed. We are informed
that in coemption, the formula was not the same as in other mancipa-
tions, § 123, but we are not informed what it was. Even in Cicero's
time many advocates were ignorant of the legal effect of a coemption
because they were ignorant of the precise terms of the formula in
which it was concluded, De Orat. 1, 56. The word itself may suggest
a conjecture that it was a conveyance of the husband to the wife as
well as of the wife to the husband ; and this is supported by Servius
on Georgics, 1, 34, and Isidorus, 5, 24, no great authorities, but who
quoted apparently from Ulpian : ' An ancient nuptial form wherein
husband and wife made a mutual purchase, to bar the inference
that the wife became a slave.' Plutarch informs us that the wife
asserted her equality by the terms, Ubi tu Caius, ego Caia, Quaest.
Eom. 28: 'Where thou art master, I am mistress.' Boethius on
Cicero, Topica, 3, 1 4, quoting from Ulpian, says : ' The man and
woman interrogated one another. He asked her if she wished to
be mother of his household ; she answered, Yes. She asked him
if he wished to be father of her household ; he answered, Yes.
And thus the woman passed into the hand of the man, and was
called the mother of his household, with the status of filiafamilias.'
According to Cicero, the wife was only called materfamilias when
subject to hand : Genus est uxor ; ejus duae formae ; una matrum-
familias, eae sunt, quae in manum convenerunt, altera earum quae
tantummodo uxores habentur, Top. 3, 14. Gellius says the same,
18, 6, 7 : Tradiderunt matremfamilias appellatam esse earn solam
quae in mariti manu mancipioque aut in ejus, in cujus maritus manu
mancipioque esset. Boethius (in Cic. Top. 3, 14) further limits the
title to a wife who has become subject to manus by coemption :
Quae autem in manum per coemptionem convenerant, hae matres-
familias vocabantur, quae vero usu et farreatione, minime, ibid.
However this may have been, in one sense the name was a mis-
nomer, for a wife subject to hand was not sui juris (materfamilias),
but alieni juris (filiafamilias) : and that materfamilias denoted a
woman sui juris, whether married or unmarried, as opposed to
i. §§108-115 6.] DE MANY 71
a filiafamilias or woman alieni juris, appears from Ulpian (4, 1) : Sui
juris sunt familiarum suarum principes, id est paterfamiliae itemque
materfamiliae. (See Muirhead's Eoman Law, App. B.)
If the wife was subject to the power of her father, she required
his sanction before she could make a coemption with her husband. If
the wife was independent of parental control, she required the
sanction of her guardians, who under the old law would have been
her nearest agnates.
Coemption was sometimes employed for other purposes than
matrimony, and was then called fiduciary coemption. Sometimes
the intention was to extinguish the obligation of onerous sacred
rites attached to the estate of an heiress : Jure consultorum ingenio
senes ad coemptiones faciendas interimendorum sacrorum causa re-
perti sunt, Cic. Pro Murena, 12, § 27. 'Juristic ingenuity invented
coemptions with aged men for extinguishing sacred rites.' Savigny
(Verm. Schr. 1, 190) gives the following conjectural explanation of
the process. The obligation to the sacra belonged to the Quiritary
ownership of the universitas of the woman's estate. This, by the
effect of coemption, vested in the coemptionator, an old man ap-
proaching dissolution (senex coemptionalis), with whom a fictitious
marriage was contracted, and who took the estate as universal
successor. He forthwith dismissed the woman from his manus by
remancipation and manumission : and then, according to covenant,
restored to her the estate in portions ; that is, released from the
ritual obligations, which only attached to the universitas. On his
death, as Quiritary owner of the empty universitas, the obligation
to the rites was extinguished : for the succession (hereditas) to the
coemptionator did not pass to the woman, as she by remancipation
had ceased to be [such was the hypothesis of Savigny before the
discovery of Gaius: instructed by Gaius we must rather say, as
mere fiduciary coemption had not the effect of making her] his
filiafamilias and sua heres. The phrase senex coemptionalis denotes
a slave. From which it may be inferred that a slave, useless for
any other purpose, and therefore very cheap, was sometimes bought
and manumitted to serve as coemptionator. In such a case the
whole transaction would be very inexpensive, if not very decorous.
This mode of getting rid of sacred rites is compared by Ihering,
§ 58, with the institution of a slave as heir to bear the infamy
of bankruptcy instead of the deceased testator, 2 § 154. Universal
succession was an institution which Koman law only admitted in
certain cases, 2 § 98, including the cases of Manus and Adrogatio.
If universal succession was required for the purpose of extinguishing
the obligation to sacred rites attaching to the estate of an heiress, we
might have supposed that Adrogatio would have been a less offensive
72 DE PERSONIS [i. §§ 108-115 6.
mockery than a fictitious marriage (fiduciary coemption) ; adrogatio,
however, was inapplicable, because, as we have seen, up to a late
period of Roman law women were incapable of being adrogated.
Moreover, the Pontifices, who had a veto on adrogations, were not
likely to lend themselves readily to the extinction of sacred rites.
(Comments of other modern writers on this subject are noticed in
Roby's Roman Private Law, 1, 71, n. 1.)
At other times Coemption was employed to enable a woman to
select a guardian, §§ 115, 195 a. Cic. Pro Murena, 12 § 27. 'There
are many wise legal provisions that juristic ingenuity has defeated
and perverted. All women on account of their weakness of judge-
ment were placed by our ancestors under a guardian's control :
jurists invented a kind of guardian subject to female dictation.'
(Cf. Sohm, 103, n. 2.)
The latest employment of Coemption enabled a woman to break
the ties of agnation and thus acquire testamentary capacity, § 1 1 5 a ;
Cic. Top. 4, 1 8. The coemptionator (party to the coemption) in virtue
of the manus thereby acquired was able, and by a fiducia or trust was
bound, to sell the woman into bondage as if she were filiafamilias :
accordingly he remancipated her to a third person, who by manumit-
ting her in accordance with another fiducia became her patron, and as
patron, in accordance with the Twelve Tables, §§ 165, 166, her statu-
tory guardian (tutor legitimus), and, as having acted under a fiducia,
her fiduciary guardian, § 1 1 5. It may occur to us that as coemptio
required the sanction of a father or guardian, this process could not
be of much use in getting rid of a guardian or defeating the claims
of agnatic guardians to a woman's intestate succession ; but it must
be remembered that the nearest agnate, who alone was heir and
guardian, was a variable person, and that a given nearest agnate
might be not indisposed to allow a woman to acquire the free dis-
position of her property and to defeat the claims of those who, after
his death, would be nearest agnates and presumptive heirs. At all
events, however indisposed the guardian might be to such a course,
a period at last arrived when the auctoritas of the guardian, though
still required as a formality, could be extorted, if not yielded volun-
tarily, by appeal to the magistrate, § 190.
Agnatic guardianship of female wards was abolished by a lex
Claudia, §171, and thus the woman would be free from the control
of an interested guardian in the disposition of her property during
her lifetime. She would still however have had little more than
a life interest until she acquired the power of testation. For when
wills could be only executed in the comitia, 2 § 101, she would be
excluded from testation, as well as from adrogation, by exclusion from
the comitia : and after the introduction of the mancipatory will she
I. §§108-115 6.] DE MANY 73
was still barred by her agnates' indefeasible claims to her reversion.
Agnation itself, however, was defeasible by means of coemptio and
remancipatio and the consequent capitis minutio ; and when the
auctoritas of the guardian for these proceedings could be extorted, § 1 90,
the woman had practically acquired power of testation, although its
exercise was hampered by a tedious formality, which was not abolished
by the emperor Claudius when he abolished agnatic guardianship.
It was not till the senatusconsult of Hadrian that the rupture of
the ties of agnation by means of coemptio ceased to be necessary to
the validity of a woman's will, §115a;2§§112, 118; though it had
probably been previously a mere formality (the woman having power
to extort at pleasure the auctoritas of the agnatic guardian) even before
the time of Claudius. As we learn from the text coemption had not
been required previously in the case of certain privileged women.
Cf. §§ 145, 194 ; 3 § 44 ; Ulp. 29, 3.
§ 114. Fiducia was a declaration of the trusts of a mancipation,
by which the party to whom the mancipation was made undertook
to remancipate under certain conditions. Besides its use in co-
emption, it was employed, as we shall see presently, in emancipation
and adoption, and was the earliest form of constituting the contracts
of deposit and mortgage, 2 §§ 59, 60 ; 3 §§ 90, 91, comm.
The pactum fiduciae, or agreement by which the conditions or trusts
were defined, must not be identified with nuncupatio. Nuncupatio
forms an integral part of Mancipatio, and what was declared in it
would constitute a title under the law of the Twelve Tables. Pactum
fiduciae, on the other hand, never coalesces with Mancipatio, but
remains a separate adjunct, originally only morally binding on the
transferee, but afterwards forming an obligation of jus gentium, and
affording ground to support a bonae fidei actio. Herein Mancipatio is
contrasted with Tradition and the dispositions of natural law. Con-
ventions accompanying Tradition unite with it, and form a single con-
solidated disposition ; and the pacts annexed (pacta adjecta) to any
contract of natural law (venditio, conductio, mandatum, &c.) become
integral parts thereof, and are enforced by the action brought on the
principal contract. Stipulatio, as a civil disposition, seems to have
originally resembled Mancipation in this respect : at least it was a
late period of the law when the rule was clearly established that :
Pacta incontinent! facta stipulation! inesse creduntur, Dig. 12, 1, 40,
i. e. Pacts made contemporaneously with a stipulation are deemed to
be portions of the stipulation. Savigny, § 268. It is true that
a Pactum adjectum respecting interest and annexed to the gentile
disposition Mutuum could not be enforced by an action brought upon
the Mutuum: but that was a consequence of the nature of the
action (condictio certi) whereby Mutuum was enforced, and which
74
DE PERSONIS
[i. §§ 116-123.
could not embrace any sum beyond the original subject of the
Mutuum ; 3 §§ 90, 91, comm.
DE MANCIPIO.
§ 116. Superest ut expona-
mus quae personae in manciple
sint.
§ 117. Omnes igitur libero-
rum personae siue masculini
siue femimni sexus quae in
potestate parentis sunt manci-
pari ab hoc eodem modo pos-
sunt, quo etiam serui manci-
pari possunt.
§ 1 18. Idem iuris est in earum
personis quae in manu sunt ; |
coemptionatoribus eo-
dem modo possunt
-apud
coemptionatorem fi|liae loco sit
nupta sit, nihilo
minus etiam quae ei nupta
non sit nee ob id filiae loco sit,
ab eo mancipari possit.
§ 118 a. Plerumque (uero
turn) solum et a parentibus et
a coemptionatoribus mancipan-
tur, cum uelint parentes coem-
ptionatoresque (ex} suo iure
eas personas dimittere, sicut
inferius euidentius apparebit.
§ 119. Est autem manci-
patio, ut supra quoque diximus,
•imaoinaria quaedam uenditio ;
quod et ipsum ius proprium
ciuium Romanorum est, eaque
res ita agitur: adhibitis non
minus quam quinque testibus
ciuibus Romanis puberibus et
praeterea alio eiusdem condi-
cionis, qui libram aeneam te-
neat, qui appellatur libripens,
is qui mancipio accipit, aes
§ 116. It remains to examine
what persons are held in man-
cipation.
§ 1 17. All children, male or fe-
male, in the power of their father
are liable to be mancipated by
their father just as his slaves may
be mancipated.
§ 118. A woman in the hand is
subject to the same mode of aliena-
tion, and may be mancipated by
the person who has acquired her
by coemption just as a daughter
may be mancipated by her father :
and although the acquirer of her
by coemption otherwise than for
the purpose of marriage has not
the power of a father over her,
nevertheless, though he is not her
husband, and therefore has not
the status of a father, he can dis-
pose of her by mancipation.
§ 1 1 8 a. Almost the sole occa-
sion of mancipation by a parent
or by the acquirer of a woman by
coemption is when the parent or
acquirer by coemption designs to
liberate the person mancipated
from his lawful control, as will
presently be more fully explained.
§ 119. Mancipation, as before
stated, is an imaginary sale, belong-
ing to that part of the law which
is peculiar to Eoman citizens, and
consists in the following process :
in the presence of not fewer than
five witnesses, citizens of Eome
above the age of puberty, and an-
other person of the same condition,
who holds a bronze balance in his
hands and is called the balance
holder, thealieneeholdingabronze
ingot in his hand, pronounces the
J.§§ 116-123.]
DE MANCIPIO
75
tenens ita dicit : HVNC EGO HO-
MINEM EX IVBE QVIBITIVM MEVM
ESSE AIO ISQVE MIHI EMPTVS E-
STO HOC AEKE AENEAQVE LIBRA ;
deinde aere percutit libram id-
que aes dat ei a quo manciple
accipit quasi pretii loco.
§ 120. Eo modo et seruiles
et liberae personae mancipan-
tur ; animalia quoque quae
mancipi sunt, quo in numero
habentur boues, equi, muH,
asini ; item praedia tarn urbana
quam rustica quae et ipsa man-
cipi sunt, qualia sunt Italica,
eodem modo solent mancipari.
§ 121. In eo solo praediorum
mancipatio a ceterorum manci-
patione differt, quod personae
seruiles et liberae, item anima-
lia quae mancipi sunt, nisi in
praesentia sint, mancipari non
possunt; adeo quidem, ut eum
(quiy mancipio accipit, adpre-
hendere id ipsum quod ei man-
cipio datur necesse sit; unde
etiam mancipatio dicititr, quia
manu res capitur ; praedia uero
absentia solent mancipari.
§ 122. Ideo autem aes et li-
bra adhibetur, quia olim aereis
tan turn nummis utebantur, et
erant asses, dupundii, semisses,
quadrantes, nee ullus aureus
uel argenteus nummus in usu
erat, sicut ex lege xil tabula-
rum intellegere possumus; eo-
ruinque nummorum uis et po-
testas non | in numero erat sed
in pondere as|ses librales
erant, et dupundii 1 ; unde
etiam dupundius dictus est
quasi duo pondo, quod nomen
adhuc in usu retinetitr. semis-
ses quoquQ et quadrantes pro
following words: THIS MAN I
CLAIM AS BELONGING TO ME BY
BIGHT QUIRITARY AND BE HE (or,
HE IS) PURCHASED TO ME BY THIS
INGOT AND THIS SCALE OF BRONZE.
He then strikes the scale with the
ingot, which he delivers to the
mancipator as by way of purchase
money.
§ 120. By this formality both
slaves and free persons may be
mancipated, and also such animals
as are mancipable, namely, oxen,
horses, mules, and asses : im-
movables also, urban and rustic,
if mancipable, such as Italic lands
and houses, are aliened by the
same process.
§ 121. The only point wherein
the mancipation of land and build-
ings differs from the mancipation
of other things is this, that manci-
pable persons, whether slaves or
free, and animals that are manci-
pable, must be present to be manci-
pated : it being necessary that the
alienee should grasp the object to
be mancipated with his hand, and
from this manual prehension the
name of mancipation is derived ;
whereas land and buildings may
be mancipated at a distance from
them.
§ 122. The reason of using a
bronze ingot and a weighing scale
is the fact that bronze was the
onlymetal used in the ancient cur-
rency, which consisted of pieces
called the as, the double as, the
half as, the quarter as, and that
gold and silver were not used as
media of exchange, as appears by
the law of the Twelve Tables :
and the value of the pieces was
not measured by number but by
weight. Thus the as was a pound
of bronze, the double as two
pounds, whence its name (du-
pondius), which still survives ;*
while the half as and quarter as
76
DE PERSONIS
[i.§§ 116-123.
rata scilicet portione ad pon|-
dus examinati erant. qui
daba£ olim \ pecuniara, non nu-
merabat earn, sed appendebat ;
unde serui quibus permittitur
administratio pe|cuniae dispen-
satores appellati sunt et 1
§ 123. coemptioj
a quidem quae coemlptionem
fac seruilem condici|onem
a 1 mancipad mancipataeue
seruorum loco con|stituuntur,
adeo quidem, ut ab eo cuius in
mancipio sunt neque heredi-
tatem neque legata aliter capere
possint, quam (si) simul eodera
testamento liberi esse iubean-
tur sicut iuris est in persona
seruorum. sed differentiae ratio
manifesto est, cum a parentibus
et a coemptionatoribus isdem
uerbis mancipio accipiantur
quibus serui; quod non similiter
jit in coemptione.
were masses denned by weighing
those respective fractions of a
pound. Accordingly, money pay-
ments were not made by tale, but
by weight, whence slaves entrust-
ed with the administration of
money have been called cashiers.
§ 123. If it is asked in what
respect coemptive conveyance dif-
fers from mancipation, the answer
is this, that coemption does not
reduce to a servile condition,
whereas mancipation reduces to
so completely a servile condition
that a person held in mancipation
cannot take as heir or legatee
under the will of the person to
whom he is mancipated, unless
he is enfranchised by such will,
thus labouring under the same
incapacity as a slave : the reason
too of the difference is plain,
as the form of words employed
in mancipation by a parent or pre-
vious acquirer by coemption is
identical with that used in the
mancipation of slaves, but it is
not so in coemptive conveyance.
In what respects did domestic bondage (mancipium or mancipii
causa) differ from slavery (servitus) ? Bondage was an institute of
jus civile, slavery an institute of jus gentium, § 52. Bondage
was the result of mancipation by a parent or coemptionator, and
only a Koman citizen was capable of becoming a bondsman. The
proprietor has possession of the slave, the lord has no possession
of the bondsman, 2 § 90. The bondsman was civis Komanus,
though what became of his political capacities during his bondage
is uncertain ; and he was liber, though alieni juris ; he was free in
respect of the rest of the world, he was only a bondsman in respect
of the person in whose mancipium he was. Thus the status of man-
cipium was relative ; a man could only be in mancipio in relation
to a given domestic lord : whereas the status of slavery was absolute ;
a man might be a slave without an owner (servus sine domino) :
for instance, a person condemned for a capital crime, who was
called the slave of punishment (servus poenae, Inst. 1, 12, 3), or
a slave abandoned (derelictus) by his owner. Accordingly, falling
into servitus was maxima capitis diminutio, while falling into man-
i. §§ 116-123.] DE MANCIPIO 77
cipii causa was minima capitis diminutio, § 162. The bondsman
had no proprietary rights against his superior, 2 § 86, but he had
some of the primordial rights ; for instance, he could sue his
superior for outrage, § 141 ; and he was capable of civil wedlock and
could beget Roman citizens, though during his bondage his patria
potestas was in abeyance, § 135. Release from bondage, as from
slavery, was by manumission, § 138, and the manumitter became the
patron of the released person, §§ 166, 195 a, but the manumitted
bondsman became ingenuus, whereas the manumitted slave became
libertinus. Bondage did not exist in the time of Justinian.
§ 119. The libripens must not be dumb, Ulpian, 20, 7: probably
because he had to utter the formula preserved by Festus, Raudusculo
libram ferito, i. e. to invite the emptor to strike the scale with the
ingot, in order to show by the ring that the metal was genuine.
Ihering, § 46, n. 708.
§ 120. Praedia Italica. Under the first emperors the body of the
Roman world consisted of three members, the imperial city, Rome,
Italy, and the provinces, the two former being highly privileged in
comparison with the third. After the Social War, 91-88 B.C., all
Italy had acquired Roman citizenship, but Italic soil was not a
purely local appellation, as jus Italicum was conceded to many
provincial cities. Jus Italicum, or Italian privileges, implied (i) a
free municipal constitution with elective magistrates (generally
called duumviri juri dicundo) possessed of independent jurisdiction ;
and, what was still more important, (2) immunity from direct
taxation, whether in the form of capitation tax (tributum capitis),
imposed on all who were not holders of land (tributarii), or in the
form of land tax (tributum agri), imposed on holders of land (pos-
sessores), and paid in provinces of the people to the aerarium under
the name of stipendium, in provinces of the emperor to the fiscus
under the name of tributum, 2 § 21. Italic soil was (3) subject to
Quiritary ownership (dominium ex jure Quiritium) and acquirable
and transferable by usucapion and mancipation. Under the later
emperors, as early as the time of Diocletian, the Roman world was
equalized, not by the elevation of the depressed members, but by
depression of those formerly favoured: Italy was shorn of her
privileges, and all the empire became provincial.
§ 122. Chemical analysis shows that the aes of which Roman
coins consisted was bronze, a mixture of copper (cuprum), tin, and
lead. [English bronze is an alloy composed of ninety-five parts of
copper, four parts of tin, and one part of zinc.] Brass, a mixture
of copper and calamine (cadmeia) or zinc, was called orichalcum.
Silver currency was first introduced B.C. 269. The primitive system
of currency was everywhere currency by weight, and every system
78
DE PERSONIS
[i. §§ 124-131.
of coinage was originally identical with a system of weights, the
unit of value being the unit of weight of some selected metal
(Jevons, Money, ch. 9). The pieces of which a currency by weight
consists are not properly coins, for coins are ingots of which the
weight and fineness are certified by the integrity of the designs
impressed upon the surfaces of the metal (ibid. ch. 7). Money
is legal tender (Mill, Pol. Econ. 12, 7). Legal tender is that
which must be tendered by the debtor and accepted by the creditor
in discharge of a debt ; e. g. in England silver coin is a legal
tender only to the amount of forty shillings in any one payment,
bronze coins are a legal tender only to the aggregate amount of
one shilling. Bank of England notes are a legal tender everywhere
in England but at the bank, i. e. are there convertible into gold.
§ 123. As coemptio was a form of mancipatio, how does it happen
that manus, the result of coemptio, differs from mancipium, the
result of mancipatio ? Because, Gaius answers, the formula of
words used in the mancipatio that entered into coemptio was speci-
fically different from the formula employed on other occasions of
mancipation.
QVIBUS MODIS IVS POTESTATIS SOLVATVR.
§ 124. Videamus nunc quo-
modo hi qui alieno iuri subiecti
sunt eo iure liberentur.
Inst. l,12pr.
§ 125. Ac prius de his dispi-
ciarnus qui in potestate sunt.
§ 126. Et quidem serui quem-
admodum potestate liberen-
tur, ex his inteUegere possuinus
quae de seruis manumittendis
superius exposuimus.
Inst. 1. c.
§ 127. Hi uero qui in pote-
state £>arentis sunt, mortuo eo
sui iurisfiunt. sed hoc disiin-
ctionem recipit ; nam mortuo
patre sane omni modo filii filiae-
ue sui iuris efficiuntur ; mor-
tuo uero auo non omni modo
nepotes neptesue sui iuris fiunt,
sed ita, si post mortem aui in
patris sui potestatem recasuri
non sunt. itoque si moriente
auo pater eorum et uiuat et in
§ 124. Let us now examine the
modes whereby persons depen-
dent on a superior are freed from
their dependence.
§ 125. And, first, let us con-
sider persons subject to power.
§ 126. How slaves are liber-
ated may be intelligible from
what we have explained above
about servile manumission.
§127. Children under paternal
power become independent at the
parent's death, subject, however,
to this reservation : the death of
a father always releases his sons
and daughters from dependence :
the death of a grandfather only
releases his grandchildren from
dependence, provided that it does
not subject them to the power of
their father : for if at the death
of the grandfather the father is
alive and in his power, the grand-
I. §§ 124^131.] Q. M. IVS POTESTATIS SOLVATVR 79
potestate patris (sui) fuerit,
tune post obitum aui in patris
sui potestate fiunt; si uero is,
quo tempore auus moritur, aut
iam mortuus est aut exiit de
potestate (patris, tune hi, quia
in potestatem) eius cadere non
possunt, sui iuris fiunt.
Inst. 1. c.
§ 128. Cum autem is cui
ob aliquod maleficium ex lege
Cornelia aqua et igni interdici-
tur ciuitatem Romanam amit-
tat, sequitur ut, quia eo modo
ex numero ciuium Romanorum
tollitur, proinde ac mortuo eo
desinant liberi in potestate eius
esse ; nee enim ratio patitur, ut
peregrinae condicionis homo
ciuem Romanum in potestate
habeat. pari ratione et si ei
qui in potestate parentis sit
aqua et igni interdictum fuerit,
desinit in potestate parentis es-
se, quia aeque ratio non patitur,
ut peregrinae condicionis homo
in potestate sit ciuis Romani
parentis. Inst. 1, 12; 1.
§ 129. Quodsi ab hostibus
captus fuerit parens, quamuis
seruus hostium fiat, tamen pen-
det ius liberorum propter ius
postliminii, quo hi qui ab hosti-
bus capti sunt, si reuersi fue-
rint, omnm pristina iura reci-
piunt ; itaque reuersus habebit
liberos in potestate. si .uero
illic mortuus sit, erunt quidem
liberi sui iuris ; sed utrum ex
hoc tempore quo mortuus est
apud hostes parens, an ex illo
quo ab hostibus captus est, du-
bitari potest. ipse quoque
films neposue si ab hostibus
captus fuerit, similiter dicemus
propter ius postliminii potesta-
tem quoque parentis in suspense
esse. Inst. 1, 12, 5.
children, after the grandfather's
death, are in the power of the
father ; but if at the time of the
grandfather's death the father is
dead or not subject to the grand-
father, the grandchildren will not
fall under his power, but become
independent.
§ 128. As interdiction from fire
and water for an offence against
the Cornelian law involves loss of
citizenship, such removal of a man
from the list of Roman citizens
operates, like his death, to liberate
his children from his power, for it
is inconsistent with civil law that
an alien should exercise parental
power over a citizen of Rome :
conversely, the interdiction from
fire and water of a person subject
to parental power terminates the
power of the parent, because it is
a similar inconsistency that a
person of alien status should be
subject to the parental power of
a Roman citizen.
§ 1 29. Though the hostile cap-
ture of the parent makes him a
slave of the enemy, the status of
his children is suspended by the
jus postliminii, whereby on escape
from captivity a man recovers all
former rights : accordingly, if the
father returns he will have his
children in his power ; if he dies
in captivity his children will be
independent, but whether their
independence dates from the death
of the parent or from his capture
by the enemy may be disputed.
Conversely, if a son or grandson
is captured by the enemy, the
power of his ascendent is also
provisionally suspended by the
jus postliminii.
80 DE PERSONIS [i. §§ 132-136.
§ 130. Praeterea exeunt li- §130. Further, a son is liberated
beri uirilis sexus de parentis from parental power by his in-
potestate si Gamines Diales in- auguration as flamen of Jove, a
augurentur, et feminini sexus daughter by her selection for the
si uirgines Vestales capiantur. office of Vestal virgin-
§ 131. Olim quoque, quo § 131. Formerly, too, when
tempore populus Romanus in Rome used to send colonies into
Latinas regiones colonias de- the Latin territory, a son who by
ducebat, qui iussu parentis in his parents' order enrolled his
eolomam Latinam nomen dedis- name in a colony ceased to be
sent, desinebant in potestate under parental power, since he
parentis esse, quia efficerentur was made a «tizen of another
alterius ciuitatis dues. state.
§ 128. Relegation was a milder form of punishment than de-
portation, and involved no loss of civitas nor of domestic rights,
Inst. 1, 12, 2.
§ 129. Postliminium is the recovery of rights by a person re-
turned from captivity, or the recovery of rights over a person or
thing recovered from hostile possession. The word postliminium
seems to be derived from pot, the root of potestas or possessio,
and limen or stlimen = ligamen, and therefore would denote the
bridging over of the interval of captivity by a fiction of continued
capacity or possession, ot a doorway is bridged over by a lintel
(limen).
§ 130. In imitation of the ancient law Justinian enacted that
certain dignities should release from patria potestas ; for instance,
patriciatus and the episcopate, the latter because it made a man
spiritual father of all mankind, Novella, 81.
§ 131. The Latini or members of coloniae Latinae were an inter-
mediate class between cives and peregrini. They differed from
peregrini in that they had commercium, i.e. capacity of Quiritary
ownership with its incidents, and they differed from cives in not
having connubium, and consequently being incapable of patria
potestas, Cic. Pro Caecina, 35. Cf. § 22, comm. A Roman citizen
could only become a Latin with his own consent. Qui cives
Romani in colonias Latinas proficiscebantur, fieri non poterant
Latini ni erant auctores facti nomenque dederant, Cic. De Domo, 30.
' Roman citizens who went to Latin colonies did not lose their
citizenship without voluntary enrolment among the colonists.' See
also Cic. Pro Balbo, 11.
§ 132. Praeterea emancipa- § 132. Emancipation also libe-
tione desinunt liberi in pote- rates children from the power of
state parentum esse. sed filius the parent, a son being liberated
I. §§ 132-136.] Q. M. IVS POTESTATIS SOLVATVR
81
quidem tribus mancipationibus,
ceteri uero liberi siue masculini
sexus siue feminini una manci-
patione exeunt de parentum
potestate ; lex enim xn tabu-
larum tantum in persona filii
de tribus mancipationibus lo-
quitur his uerbis si PATER FI-
LIVM (T.EB) VENVM DVIT, A PA-
TBE FILTVS LIBER ESTO. eaque
res ita agitur : mancipat pater
filium alicui ; is eum uindicta
manumittit ; eo facto reuertitur
in potestatem patris ; is eum
iterum mancipat uel eidem uel
alii (sed in usu est eidem man-
cipari) isque eum postea sirni-
liter uindicta manumittit ; eo
facto rursus in potestatem pa-
tris reuertitur ; tertio pater eum
mancipat uel eidem uel alii (sed
hoc in usu est, ut eidem man-
cipetur), eaque mancipatione
desinit in potest&te patris esse,
eftamsi nondum manumissus sit
sed adhuc in causa mancipii.
sj — | 1 missi-
(3 uersus in G legi nequeunt.)
Inst. 1, 12, 6 ; Epit. 1, 6, 3.
§ 132 a.
-pa-
trono in bonis
(3 ueraU8 in C legi nequeunt.)
— feminae una \ manci-
patione exeunt de patris pote-
state 1 manumissae
fuerint s 1 ( 1
Inst. 1. c.
by three mancipations, other
issue, male or female, by a single
mancipation ; for the law of the
Twelve Tables only mentions
three mancipations in the case
of the son, which it does in the
following terms : IF A FATHER
SELL A SON THREE TIMES, THE SON
SHALL BE FREE FROM THE FATHER.
The ceremony is as follows : the
father mancipates his son to some
one; the alienee manumits him by
fictitious vindication, whereupon
he reverts into the power of his
father ; the father again manci-
pates him to the same or a diffe-
rent alienee, usually to the same,
who again manumits him by
fictitious vindication, whereupon
he reverts a second time into the
power of his father ; the father
then mancipates him a third time
to the same or a different alienee,
usually to the same, and by this
third mancipation the son ceases
to be in the power of the father
even before manumission, while
still in the status of a person
held in mancipation. [The alienee
or fiduciary father should then
remancipate him to the natural
father, in order that thereupon
the natural father by manumit-
ting him may acquire the rights
of patron instead of the fiduciary
father.]
§ 1 32 a. A manumitter of a free
person from the state of man-
cipium has the same rights to the
succession of his property as a
patron has in respect of the pro-
perty of his freedman. Women
and male grandsons by a son
pass out of the power of their
father or grandfather after one
mancipation ; but unless they are
remancipated by their fiduciary
father, and manumitted by their
natural father, the latter has no
rights of succession to their pro-
perty.
G
82
DE PERSONIS
[i. §§ 132-136.
§ 133. Admonendi autem
sumus liberum esse arbitrium
et qui filium et ex eo nepotem
in potestate habebit, filium
quidem de potestate dimittere,
nepotem uero in pot&state re-
tinere ; uel ex diuerso filium
quidem in potestate retinere,
nepotem uero manumittere,
uel omnes sui iuris efficere.
eadem et de pronepote dicta
esse intellegemus.
Inst. 1, 12, 7 ; Gaius in Dig.
1,7,28.
§134.
-et duae
intercedentes manumissiones
proinde fiunt, ac fieri solent
cum ita eum pater de potestate
dimittit, ut sui iuris efficicttur.
deinde aut patri remancipatur,
et ab eo is qui adoptat uindicat
apud praetorem filium suum
esse, et illo contra non uin^-
cante (a) praetore uindicanti
filius addicitur ; aut non reman-
cipatiir patri, sed ab eo uindi-
cat is qui adop£a£, apud quern
in teitia mancipatione est ; sed
sane commodius est patri re-
mancipari: in ceteris uero
liberorum personis sen mascu-
lini seu feminini sexus una sci-
licet mancipatio sufficit, et aut
remancipan-tur parenti aut non
remancipantur. Eadem et in
prouinciis apud praesidem pro-
uinciae solent fieri.
Inst. 1,12,8.
§ 135. Qui ex filio semel ite-
rumue mancipato conceptus
est, licet post tertiam mancipa-
tionem patris sui nascatur,
tamen in aui potestate est, et
ideo ab eo et ernancipari et in
adoptionem dari potest. At is
§ 133. But it should be noticed
that a grandfather who has
both a son, and by his son a
grandson, in his power, may either
release his son from his power
and retain the grandson, or retain
the son and manumit the grand-
son, or emancipate both son and
grandson ; and a great grand-
father has a similar latitude of
choice.
§ 134. A father is also divested
of power over his children by
giving them in adoption. To give
a son in adoption, the first stage
is three mancipations and two
intervening manumissions, as in
emancipation ; after this the son is
either remancipated to the father,
and by the adopter claimed as son
from him by vindication before
the praetor, and in default of
counterclaim by the natural father
is awarded by the praetor to the
adoptive father as his son; or
without remancipation to the
natural father is directly claimed
by the adoptive father by vin-
dication from the alienee of the
third mancipation (fiduciary fa-
ther) ; but it is more convenient
to interpose a remancipation to
the natural father. In the case
of other issue, male or female, a
single mancipation suffices, with
or without remancipation to the
natural father. In the provinces
a similar ceremony can be per-
formed before the president of
the province.
§ 135. A grandson begotten
after the first or second mancipa-
tion of the son, though born after
the third mancipation, is subject
to the power of the grandfather,
and may by him be given in
adoption or emancipated: a grand-
i. §§ 132-136.] Q. M. IVS POTESTATIS SOLVATVR
83
qui ex eo filio conceptus est qui
in tertia mancipatione est non
nascitur in aui potestate. sed
eum Labeo quidem existimat m
eiusdem mancipio esse cuius et
pater sit ; utimur autem hoc
iure, ut quamdiu pater eius in
mancipio sit, pendeat ius eius ;
et siquidem pater eius ex man-
cipatione manumissus erit, ca-
dat in eius potestatem ; si uero
is dum in mancipio sit deces-
serit, sui iuris fiat.
§ 135 a. | Eadem scilicet
1 nam ] ut supra
diximus, quod in filio faciunt
tres manci|pationes, hoc facit
una mancipatio in nepote.
§136.-| 1 1
Maximi et | Tuberonis cautum
est, ut haec quod ad sacra tan-
turn uideatur in manu esse,
quod uero ad ceteras causas
proinde habeatur, atque si in
manum non conuenisset.| 1
potestate parentis libe-
rantur ; nee in terest, an in uiri
sui manu smt an extranei,
quamuis hae solae loco filia-
rum habeawtur quae in uiri
malnu sunt.
son begotten after the third man-
cipation is not born in the power
of the grandfather, but, according
to Labeo, is born in mancipation
to the person to whom his father
is rnaneipated. The rule, how-
ever, which has obtained accept-
ance with us is, that so long as the
father is in mancipation the status
of the child is in suspension, and if
the father is manumitted the child
falls under his power ; if the
father dies in mancipation the
child becomes independent.
§ 135 a. The rule is the same
in the case of a child begotten
of a grandson who has been
once mancipated, but not yet
manumitted ; for, as before men-
tioned, the result of three man-
cipations of the son is obtained
by a single mancipation of the
grandson.
§ 136. A wife subjected to the
hand of a husband by confarrea-
tion is not thereby freed from
the power of her father ; and this
is declared by the senatusconsult
of the consuls of Maximus and
Tubero respecting the priestess of
Jove, according to which she is
only in the marital hand as far as
the sacra are concerned, the status
of the wife being unaffected in
other respects by such subjection.
Subjection to hand by coemption
liberates from the power of the
parent, and it is immaterial
whether it is a coemption sub-
jecting the woman to the hand
of a husband or to the hand of
a stranger, although the status
of quasi daughter only belongs
to a woman in the hand of a
husband.
§ 132. The epitome of Gaius, 1, 6, 3, which throws light on this
passage, mentions as present at an emancipation, besides the five
witnesses and libripens, a seventh person called antestatus, who
is also mentioned in the bronze tablet referred to in the remarks
a a
84 DE PERSONIS [i. §§ 132-136.
on pignus and fiducia. Book 3, §§ 90, 91, comm. His duty may
have been to ask the witnesses whether they were bearing witness
to the transaction (antestari). Cf. Koby, Private Law, pp. 180, n. 2,
423, n. 3.
The vindicta or wand used in manumission, as already stated, was
the rod or verge symbolizing a lance carried by the parties in a real
action, 4 § 1 3. The status of freedom (libertas) whether as opposed to
slavery or to bondage (mancipii causa) was a real right (jus in rem),
and therefore a subject to be contested in a vindicatio. Manumis-
sion by vindicta was a collusive vindicatio, in o.'her words, an in
jure cessio. Cf. Roby, 1, p. 26, n. 1.
The epitome of Gaius (1. c.) calls the person, to whom the son was
mancipated by pater naturalis, pater fiduciarius, which implies that
the mancipation was accompanied by a fiducia or declaration of
trust. The trust would be that the pater fiduciarius should make
default or confess in the subsequent in jure cessio.
§ 134. Assuming that in adoption, as in emancipation, the person
to whom the son was mancipated was called pater fiduciarius, we
find in adoption three fathers in the field, pater naturalis, pater
fiduciarius, and pater adoptivus. Remancipation to the natural
father added a stage to the process ; but is described as more con-
venient, because it reduced the number of actors from three to two ;
for it enabled the part of pater fiduciarius to be played .by pater
adoptivus. It appears from § 135 (cf. however § 141) that though
the status of bondage was purely formal, yet perhaps to give an
air of reality to the drama, the status was sometimes made to
have a certain duration. So when a prince is advanced from the
rank of private to that of general, a certain interval is interposed
between the intermediate promotions for the sake of decorum,
though, the whole proceeding being unreal, all the steps, if the
authorities were so disposed, might be compressed into a single day.
Ihering, § 46.
The status of paterfamilias or of filiusfamilias being, like other
kinds of status, a real right, the claim of a person as filiusfamilias
was a matter to be contested in a real action or vindicatio brought
against the person in whose possession he was. This would seem
the more obvious in primitive times, when probably no distinction
was made between patria potestas and dominica potestas, i.e. be-
tween paternal power and absolute proprietorship. Such vindicatio
was sometimes a matter of contentious (not voluntary) jurisdiction,
i.e. of genuine litigation. Cf. Dig. 6. 1, 1, 2, where we are told that
the ground of making a claim of this kind must be particularly
specified (adfecta causa) in the vindication. The ordinary mode
of judicially determining the status of a child in case of dispute was
I. §§ 137-141.] Q. M. MANY ET MANCIPIO LIBEEENTVR 85
by a praejudicium, 4 § 44, comm. The father could compel any one,
who had possession of his child, to produce him by the interdictum
de liberis exhibendis or de liberis ducendis 4 §§ 138-170, comm.
In case of dispute between paterfamilias and filiusfamilias inter
se, recourse might be had to the extraordinaria cognitio of the
magistrate. Sohm's Inst. § 101.
Justinian simplified the formalities of emancipation and adoption.
He allowed the former to be accomplished by a simple declaration
of the father before a competent judge or magistrate (Emancipatio
Justinianea) ; and the latter after appearance of all the parties before
such a judge, insinuatio, i.e. a memorandum of the transaction in the
public records (actis intervenientibus) being in both cases required.
Emancipation by imperial rescript had been previously instituted by
the Emperor Anastasius (Emancipatio Anastasiana). Imperial rescript
was required for effecting an arrogation.
In English law children are enfranchised, and the limited power
of the father over their person and property is terminated by
two events which did not operate emancipation in Eoman law,
marriage and arrival at years of discretion, that is, attainment of
majority by the completion of twenty-one years of age. At
these points, under English law, the empire of the father or other
guardian gives place to the empire of reason ; whereas neither
marriage nor majority released the Eoman son or daughter from
potestas.
§ 136. Cf. §§ 108-115 &, comm. Q. Aelius Tubero and Paulus
Fabius Maximus were consuls B.C. 11, the year in which the office
of flamen dialis was re-established. This cannot therefore be the
law A.D. 23 referred to by Tacitus, Ann. 4, 16 (see note to Muirhead's
Gaius).
§ 137. 1 1 j § 137. A woman subjected to
— mancipatione desinunt in hand by coemption is, like a
manu esse, et si ex ea mancipa- daughter, released therefrom by
tione manumissae fuerint sui one mancipation, and on sub-
iuris ef|fici^7iiur. sequent manumission becomes
independent.
xio-y^ -.,. i §137 a. Between a woman who
V *wf w« ' — . ---(j UcttJ f - ' , . . . • . .,
cogere coem^onatorem ha* entered 1!lto a coemPtlon ™&
potest, ut se remancipet, cui a stranger and a woman who has
4 ,,., ...,^ . entered into a coemption with a
lpsa uel|it nihilo magis husband there is this difference,
potest cogere quam et fi ha that the former has the power of
patrem. sed film quidem nullo compelling the coemptionator to
mpdo patrem potest cogere, remancipate her to any one she
etiamsi adoptiua sit ; haec au- pleases, whereas the latter cannot
tern {uirum} repudio misso compel him to do this any more
proinde conpellere potest, at- than a daughter can her father.
86
DE PERSONIS
[i. §§ 137-141.
que si ei numquam nupta
fuisset.
§ 138. li qui in causa man-
cipii sunt, quia seruorum loco
habentur, uindicta censu testa-
mento manumissi sui iuris
fiuut.
§ 1 39. Nee tamen in hoc casu
lex Aelia Sentia locum habet.
itaque nib.il requirimus, cuius
aetatis sit is qui manumittit et
qui manumittitur ; ac ne illud
quidem, an patronum credito-
remue manumissor babeat. ac
ne numerus quidem lege Fufia
Caninia finitus in his personis
locum babet.
§ 140. Quin etiam inuito
quoque eo cuius in mancipio
sunt censu libertatem consequi
possunt, excepto eo quern pater
ea lege mancipio dedit ut sibi
remancip&tur ; nam quodam-
modo tune pater potestatem
propriam reseruare sibi uidetur
eo ipso, quod mancipio recipit.
1 ac ne is quidem dicitur inuito
eo cuius in mancipio est censu
libertatem consequi, quern pater
ex noxali causa [mancipio de-
dit], ueluti quod furti eius no-
mine damnatus est, [et eum]
mancipio actori dedit ; nam
bunc actor pro pecunia habet.
A daughter, however, has no
means of compelling her father
to emancipate her even if she is
only such by adoption, whereas
a wife by sending a message of
divorce can compel her husband
to release her from his hand, just
as if they had never been married.
§ 138. As persons in mancipa-
tion are in the position of slaves,
manumission byfictitious vindica-
tion, by entry on the censor's
register, by testamentary disposi-
tion, are the modes by which
they acquire independence.
§ 139. But to them the lex
Aelia, Sentia has no application :
no age of the person manumitting
or the person manumitted is
required ; the manumission is
subject to no proviso against
fraud on the rights of patron or
creditors, nor even to the nu-
merical limitation of the lex
Fufia Caninia.
§ 140. But even though the
assent of the holder in mancipa-
tion is withheld, freedom may
be acquired by entry on the
register of the censor, except
when a son has been mancipated
by a father with a condition of
remancipation, then the father
is deemed to have reserved in a
way his own power in consequence
of the condition that he is to
have him back in mancipation ;
nor can liberty be acquired with-
out the assent of the holder in
mancipation by entry on the
censor's register when a delin-
quent son has been surrendered
by his father in consequence of
a noxal suit ; when, for instance,
the father has been condemned in
an action for a theft committed by
the son, and has by mancipation
surrendered his son to the plaintiff,
for in this case the plaintiff holds
him in lieu of pecuniary damages.
I. §§ 142-154.] DE TVTELIS 87
& 141. In summa admonendi § 141. Finally, it is to be
sumus aduersus eos quos in observed that contumelious treat-
mancipio habemus nihil nobis ment of a person held m mancipa-
contu^eliosefacerelieere: alio- fc
qum mmriarumtenebimu^ ac ™*< n ^
ne dm quidem in eo mre deti- igtent but m*rel formai and
nentur homines, sed plerumque momentary except when it is
hoc fit dicis gratia uno mo- the consequence Of surrender in
mento, nisi scilicet ex noxali lieu of Damages in an action of
causa mancipentur. trespass.
§ 137. Dissolution of marriage (divortium) could be effected either
by the consent of both parties or by the act of one. The message of
repudiation (repudium) contained the formula, Tuas res tibi habeto,
' Take away thy property.' Mimam illam suam suas res sibi habere
jussit claves ademit, exegit, Cic. Phil. 2, 28. ' The actress was ordered
to pack, deprived of the keys, turned out of the house,' The lex Julia
de adulteriis prescribed a form for repudium, and required the message
to be delivered by a freedman of the family, in the presence of
seven witnesses above the age of puberty and citizens of Rome.
The party who made a causeless repudium, or whose misconduct
justified a repudium, was punished by pecuniary losses in respect of
dos and propternuptial donations. After much veering legislation
under the Christian Emperors, Justinian enacted that a man or woman
who divorced without a cause should retire to a cloister and forfeit
all his or her estate, one moiety to his or her successors, and the other
moiety to the cloister. Nov. 1 34, 1 1. But it was not till later times
that the Church succeeded in making marriage indissoluble by law,
§ 140. Ihering, § 32, infers from this that the census, like a year
of jubilee, freed all but noxal and fictitious bondsmen at the end of
five years : and that the Twelve Tables, in limiting a father to three
mancipations, disabled him from selling the services of his son for
more than fifteen years. As to noxal surrender of filiifamilias see
4 §§ 75-81.
§ 141. Whereas no injuria could be done to a slave. 4 § 222.
DE TVTELTS.
& 142. Transeamus nunc ad § 142. Let us now proceed to
aliara diuisionem. nam ex his another classification: persons not
subiect to power, nor to hand,
personis quae neque in pote- ^ hdd £ mancipation) may
state neque m manu neque in gtm be subject either to tutelary
mancipio sunt quaedam uel in guardianship or to curatorship,
tutela sunt uel in curatione, Or may be exempt from both
quaedam neutro iure tenentur. forms of control. We will first
88
DE PERSONIS
[i. §§ 142-154.
uideanras igitur quae in tutela
quae in curatione sint ; ita enim
intellegemus ceteras personas
quae neutro iure tenentur.
Inst. l,13pr.
§ 143. Ac prius dispiciamus
de his quae in tutela sunt.
Inst. 1. c.
§ 144. Permissum est itaque
parentibus liberis quos in po-
testate sua habent testament
Stores dare : masculini quidem
sexus inpuberibus, (feminini
autem sexus cuiuscumque ae-
tatis sint, et turn (?uo)que,
cum nuptae sint. ueteres enim
uoluerunt feminas, etiamsi per-
fectae aetatis sint, propteranimi
leuitatem in tutela esse.
Inst. 1,13, 3.
§ 145, Itaque si quis filio
filiaeque testamento tutorem
dederit et ambo ad pubertatem
peruenerint, filius quidem desi-
nit habere tutorem, filia uero
nihilo minus in tutela perma-
net ; tantum enim ex lege lulia
et PapiaPoppaea iure liberorum
tutela liberanturfeminae. loqui-
mur autem exceptis uirginibus
Vestalibus quas etiam ueteres in
honorem sacerdotii liberas esse
uoluerunt, itaque etiam lege xn
tabularum cautum est.
Inst. 1. c.
§ 146. Nepotibus autem nep-
tibusque ita demum possumus
tesiamento tutores dare, si post
mortem nostram in patris sui
potestatem [iure] recasuri non
sint. itaque si filius meus
mortis meae tempore in pote-
state mea sit, nepotes ex eo non
poterunt ex testamento meo
habere tutorem, quamuis inpote-
state mea fuerint ; scilicet quia
mortuo me in patris sui pote-
state futuri sitnt. Inst. 1. c.
examine what persons are subject
to tutelary guardianship and
curatorship, and thus we shall
know who are exempt from both
kinds of control.
§ 143. And first of persons
subject to tutelary guardianship
or tutelage.
§ 144. The law allows a parent
to appoint guardians in his will
for the children in his power,
below the age of puberty, if they
are males ; whatever their age,
and notwithstanding their mar-
riage, if they are females ; for,
according to our ancestors, even
women who have attained their
majority, on account of their levity
of disposition, require to be kept
in tutelage.
§ 145. Accordingly, when a
brother and sister have a testa-
mentary guardian, on attaining
the age of puberty the brother
ceases to be a ward, but the sister
continues, for it is only under
the lex Julia and Papia Poppaea
by title of maternity that women
are emancipated from tutelage ;
except in the case of vestal
virgins, for these, even in our
ancestors' opinion, are entitled
on account of the dignity of their
sacerdotal function to be free from
control, and so the law of the
Twelve Tables enacted.
§ 146. A grandson or grand-
daughter can only receive a testa-
mentary guardian provided the
death of the testator does not
bring them under parental power.
Accordingly, if at the time of the
grandfather's death the father
was in the grandfather's power,
the grandchildren, though in the
grandfather's power, cannot have
a testamentary guardian, because
his death leaves them in the
power of the father.
I. §§ 142-154.]
DE TVTELIS
89
§ 147. Cum tamen in con-
pluribus aliis causis postumi
pro iam natis habeantur, et in
hac causa placuit non minus
postumis quam iam natis testa-
mento tutores dari posse, si
modo in ea causa sint, ut si
uiuis nobis nascantur, in pote-
state nostra fiant. hos (enim)
etiam heredes instituere possu-
mus, cum extraneos postumos
heredes instituere permissum
non sit. Inst. 1,13, 4.
§ 148. { Vocoriy quae in manu
est proinde ac filiae, item nurui
quae in filii manu est proinde
ac nepti tutor dari potest.
§ 149. Kectissime autem
tutor sic dari potest : L. TITIVM
LIBERIS MEIS TVTOBEM DO. Bed
et si ita ecriptum sit LIBERIS
MEIS uel VXOBI MEAE TITIVS
TVTOB ESTO, recte datus intelle-
gitur.
§ 150. In persona tamen
uxoris quae in manu est recepta
est etiam tutoris optio, id est
ut liceat ei perrnittere quern
uelit ipsa tutorem sibi optare,
hoc modo : TITIAE \XORI MEAE
TVTOEIS OPTIONEM DO. quo casu
licet uxori (tutorem optare) uel
in omnes res uel in unam forte
aut duas.
§ 151. Ceterum aut plena
optio datur aut angusta.
§ 152. Plena ita dari solet,
ut proximo supra diximus.
angusta ita dari solet— TITIAE
VXOBI MEAE TVTOEIS OPTIONEM
DVMTAXAT SEMEL DO, aut DVM-
TAXAT BIS DO.
§ 153. Quae optiones pluri-
mum inter se ditferunt. nam
quae plenam optionem habet
potest semel et bis et ter et
§ 1 47. As in many other matters
after-born children are treated on
the footing of children born before
the execution of the will, so it is
ruled that after-born children, as
well as children born before the
will was made, may have guar-
dians therein appointed, provided
that if born in the testator's life-
time they would be subject to
his power [and self-successors],
for such after-born children may
be instituted heirs, but not after-
born strangers.
§ 148. A wife in the testator's
hand may receive a testamentary
guardian as if she were a daughter,
and a son's wife in the son's hand
as if she were a granddaughter.
§ 149. The most regular form
of appointing a guardian is in
the following terms : ' I APPOINT
LUCIUS TlTIUS GUAKDIAN TO MY
CHILDREN'; the form, 'BE Lucius
TlTTUS GUARDIAN TO MY CHILDREN*
— or, 'TO MY WIFE ' — is also valid.
§ 150. To a wife in his hand a
testator is permitted to devise the
selection of her guardian, that is,
he may authorize her to choose
whom she pleases, in the follow-
ing terms : i To TITIA MY WIFE
I DEVISE THE SELECTION OF HER
GUARDIAN'; whereupon she may
nominate either a general guar-
dian or a guardian for certain
specified matters.
§ 151. The option of a guardian
may be limited or unlimited.
§ 152. Unlimited option is
usually devised in the form above
mentioned ; limited option in the
following terms: 'To TITIA MY
WIFE I DEVISE NOT MORE THAN
ONE OPTION ' — or, 'NOT MORE THAN
TWO OPTIONS — OF A GUARDIAN.'
§ 153. The effect of these forms
is very different : unlimited option
is a power of choosing a guardian
an indefinite number of times;
90 DE PERSONIS [i. §§ 142-154.
saepius tutorem optare ; quae limited option is the right of a
uero angustam habet optionem, single choice, or of two choices,
si dumtaxat semel data est as may happen,
optio, amplius quam semel op-
tare non potes£ ; si dumtaxat
bis, amplius quam bis optandi
facultatem non habei.
§ 154. Vocantur autem hi § 154. A guardian actually
qui nominatim testamento tu- nominated by the will of the
tores dantur datiui, qui ex testator is called a dative guardian;
optione sumuntur optiui. ™ *•*«? by selection (of the
widow) is called an optative
guardian.
Having examined those inferiorities of legal capacity which con-
stituted a status, we now proceed to examine certain cases of inca-
pacity of acting independently which, though analogous to the former
as belonging to the sphere of unequal rights, were not included by
the Romans under the denomination of status. The inferiorities of
capacity in infancy, minority, tutelary wardship, curatel, were
different in character and not so considerable as those which we
have hitherto examined. The diminution of rights in a lapse
from independence to curatel was less than the least capitis
minutio, and accordingly a prodigal who was interdicted from
the administration of his estate and subjected to the control of
a curator, was not said to undergo a status mutatio : his patrimony
still vested in him, though he was deprived of its administration ;
whereas adrogatio and in manum conventio divested a person of the
capacity of ownership and active obligation : inferior status, in a
word, is incapacity of right ; wardship and curatel are only incapa-
cities of disposition.
Guardianship is thus defined : Est autem tutela, ut Servius definit,
jus ac potestas in capite libero, ad tuendum eum qui propter aetatem
se defendere nequit, jure civili data ac permissa, Inst. 1, 13, 1.
' Guardianship is a right and power over an independent person
conferred or authorized by the Civil law for the protection of one
who is incapacitated by age for self-defence.' The duties of the
guardian related both to the person and to the property of the ward.
In respect of "his person, the guardian was charged with the care of
his nurture and education : in respect of his property, the guardian's
function was distinguished as either exclusive administration or
concurrent interposition of authority (rem gerere et auctoritatem
interponere). Up to the age of seven the ward was called infans, 3
§ 109, and during this period the guardian acted alone (administratio,
negotiorum gestio) ; after the completion of seven years until the age
of puberty (fourteen for males, as the time was ultimately fixed,
I. §§ 155-158.] DE LEGITIMA AGNATORVM TVTELA 91
twelve for females) the ward acted, and the guardian concurrently
gave his sanction (auctoritas). The sanction of the guardian was a
legal act of a highly formal character (actus legitimus), by which such
legal acts of his ward, as would otherwise have been imperfect, obtained
validity. Accordingly the guardian could not give his sanction by
letter or through an agent, but had to be present himself for the
purpose at the time when the act of the ward was executed, so that
he might be a subsidiary party to it. Ins.t. 1, 21, 2 Tutor autem
statim in ipso negotio praesens debet auctor fieri, si hoc pupillo
prodesse existimaverit. post tempus vero aut per epistulam inter-
posita auctoritas nihil agit.
The sanction of the guardian was necessary whenever the act of
the ward was one which might possibly entail loss, but not otherwise.
Of. 2 §§ 80-85, Inst. 1. c. pr. and 1 Auctoritas autem tutoris in quibus-
dam causis necessaria pupillis est, in quibusdam non est necessaria.
ut ecce si quid dari sibi stipulentur, non est necessaria tutoris aucto-
ritas: quod si alias pupilli promittant, necessaria est: namque placuit
meliorem quidem suam condicionem licere eis facere etiam sine
tutoris auctoritate, deteriorem autem non aliter quam tutore auctore.
unde in his causis, ex quibus mutuae obligationes nascuntur, in
emptionibus venditionibus, ... si tutoris auctoritas non interveniat,
ipsi quidem, qui cum his contrahunt, obligantur, at invicem pupilli
non obligantur In respect of administration of property the
guardian incurred a quasi-contractual obligation, and was accordingly
liable to the judicium or actio tutelae.
In the time of Gaius, women continued subject to guardianship
after the age of puberty : the functions of the guardian were in their
case confined to auctoritas, which in most cases was a mere formality ;
the power of administration vested in the woman, § 190.
§ 147. For an account of the different classes of Postumi see 2
§ 130, comm.
§ 148. In filii manu must be regarded as an inaccurate expression :
for filiusfamilias was incapable of all civil rights, including manus,
and could only serve as a conduit-pipe by which the right of manus
vested in his father.
§ 154. In the Code and Digest of Justinian the term tutor dativus
is used to signify a guardian appointed by a magistrate. Cod. 5, 50, 5 ;
Dig. 46, 6, 7.
DE LEGITIMA AGNATORVM TVTELA.
§ 155. Quibus testamento § 155. In default of a testa-
quidem tutor datus non sit, iis mentary guardian the statute of
, ,, 7 7 \ ,. the Twelve Tables assigns the
exlegexn<ta^amm>agnati guardianship to the nearest ag-
sunt tutores, qui uocantur legi- nates, who are hence called statu-
timi. Inst. 1, 15 pr. tory guardians.
DE PERSONIS
[i. §§ 155-158.
§ 156. Sunt autem agnati
per uirilis sexuspersonas cogna-
tione iuncti, quasi a patre
cognati, ueluti frater eodem
patre natus, fratris filius ne-
posue ex eo, item patruus et
patrui filius et nepos ex eo. at
hi qui per feminini sexus per-
sonas cognatione coniunguntur
non sunt agnati, sed alias
natural! iure cognati. itaque
inter auunculum et sororis
fiJiuin non agnatio est, sed
cognatio. item amitae, mater-
terae filius non est mini agnatus,
sed cognatus, et inuicein scilicet
ego illi eodem iure coniungor,
quia qui nascuntur patris, non
matris familiam secuntur.
Inst. 1,15,1.
§ 157. Et olim quidem,
quantum ad legern xii tabu-
larum attinet, etiam feminae
agnatos habebant tutores. sed
postea lex Claudia lata est
quae, quod ad feminas attinet,
(agnatorum} tutelas sustulit ;
itaque masculus quidem in-
pubes fratrem puberem aut
patruum habet tutorem, femina
uero talem habere tutorem non
potest.
§158. Sed agnationis quidem
ius capitis deminutione peri-
mitur, cognationis uero ius eo
modo non commutatur, quia
ciuilis ratio ciuilia quidem iura
corrumpere potest, naturalia
uero non potest. Inst. 1, 15, 3.
§ 156. Agnates (3 § 10) are
persons related through males,
that is, through their male ascen-
dents : as a brother by the same
father, such brother's son or son's
son ; a father's brother, his son
or son's son. Persons related
through female ascendents are
not agnates but simply cognates.
Thus, between an uncle and his
sister's son there is not agnation,
but cognation : so the son of my
aunt, whether she is my father's
sister, or my mother's sister,
is not my agnate, but my cog-
nate, and vice versa ; for chil-
dren are members of their father's
family, not of their mother's.
§ 157. In former times, the
statute of the Twelve Tables made
females as well as males wards of
their agnates : subsequently a law
of the EmperorClaudius abolished
this wardship in the case of fe-
males : accordingly, a male below
the age of puberty has his brother
above the age of puberty or his
paternal uncle for guardian, but
a female cannot have such a
guardian.
§ 158. Capitis deminutio extin-
guishes rights by agnation, while
it leaves unaffected rights by cog-
nation, because civil changes can
take away rights belonging to
civil law (jus civile), but not rights
belonging to natural law (jus
naturale).
§ 156. As to this definition of agnati see Moyle's note to Inst.
1, 15, 1. The maxim here enunciated is calculated to give a false
idea of the relation of the institutes of jus gentium to those of jus
civile. Title by cognation is just as much an institute of positive
law as title by agnation, though cognation, or blood-relationship, is in
itself a natural and permanent tie, while agnation is an artificial one,
and therefore only occasional. The synthesis of title and right in jus
I. §§ 159-164.] DE CAPITIS MINVTIONE 93
civile may be freakish and capricious, while that in jus gentium may
be reasonable and expedient ; but both are equally positive institu-
tions, and both are equally mutable and liable to be overruled.
Accordingly, the specious-sounding maxim, that revolutions in status
or civil condition cannot affect such rights as are annexed to natural
titles, crumbles away as soon as we examine it, for we find that it
only holds good of the most insignificant change, the minima
capitis minutio, 3 § 27, and that maxima and media capitis minutio
extinguish title by cognation, which belongs to jus gentium, as well as
title by agnation, which belongs to jus civile. Inst. 1, 16, 6.
The truth is, that the effects of a collision of Civil and Natural
law fall under two very different classes, which it is important to
distinguish.
1. If the command of the civil lawgiver, under the sway of
motives financial, political, ethical, or religious, is highly imperious
and absolutely compulsive, all natural titles with which it may
come in conflict are absolutely void and inoperative : e. g. the Sc.
Velleianum, prohibiting suretyship of women, allowed no naturalis
obligatio to be produced by any such suretyship : and so with the
laws prohibiting gambling and usury.
2. If the command of the civil law is less peremptory and abso-
lute, it may deprive any conflicting natural title of plenary force,
and yet leave to it a naturalis obligatio capable of acquiring efficacy
by some machinery of positive law ; e. g. the Sc. Macedonianum,
prohibiting money loans to a filiusfamilias without the sanction of
his father, made them irrecoverable by action, and yet the courts
recognized in the borrowing filiusfamilias a naturalis obligatio, which
was capable of novation, Dig. 46, 2, 19, and a bar to recovery back
(condictio indebiti) in case of actual repayment, Dig. 14, 6, 10.
When Justinian consolidated the law of intestate succession and
made the right of succession depend on cognation instead of agnation,
he made a corresponding change in the obligation of guardianship,
which henceforth devolved on cognates instead of agnates, women
as formerly, with the exception of mothers and grandmothers, being
excluded from the office, Nov. 118, 5.
DE CAPITTS MINVTIONE.
§ 159. Est autem capitis § 159. Capitis deminutio is a
deminutio prioris status per- change of a former status which
mutatio. eaque tribus modis occurs in three ways, i. e. it is
accidit: nam aut maxima est either greatest, minor or mediate,
capitis deminutio, aut minor or least,
quam quidam mediam uocant,
aut minima. Inst. 1, 16pr.
94
DE PERSONIS
[i. §§ 159-164.
§ 160. Maxima est capitis
deminutio, cum aliquis simul
et ciuitatem et libertatem
amittit; quae accidit incensis,
qui ex forma censuali uenire
iubentur ; quod ius p 1
— • ex lege — | qui
contra earn legem in urbe Roma
do|micilium habuerint ; item
feminae quae ex senatuscon-
sulto Claudiano ancillae fitint
eorum dominorum quibus inui-
tis et denuntiantibus cum seruis
eorum coierint. Inst. 1, 16, 1.
§ 161. Minor siue media
est capitis deminutio, cum
ciuitas amittitur, libertas reti-
netur ; quod accidit ei cui aqua
et igni interdictum fuerit.
Inst. 1, 16, 2.
§ 162. Minima est capitis
deminutio, cum et ciuitas et
libertas retinetur, sed status
hominis commutatur ; quod ac-
cidit in his qui adoptantur,
item in his quae coemptionem
faciunt, et in his qui mancipio
dantur quique ex mancipatione
manumittuntur ; adeo quidem,
ut quotiens quisque mancipe-
tur aut manumittatur, totiens
capite deminuatur.
Inst. 1,16, 3.
§ 163. Nee solum maiori&ws
(capitisy deminutionibus ius
agnationis corrumpitur, sed
etiam minima ; et ideo si ex
duobus liberis alterum pater
emancipauerit, post obitum
eius neuter alter! agnationis
iure tutor esse poterit.
§ 164. Cum autem ad agna-
tos tutela pertineat, non simul
ad omnes pertinet, sed ad eos
tantum qui proximo gradu sunt.
§ 160. The greatest capitis de-
minutio is the simultaneous loss
of citizenship and freedom, which
happens to those who having
evaded inscription on the censo-
rial register are sold into slavery
according to the regulations of
the census, also under the
law when persons in violation of
it make Rome their place of resi-
dence, and also under the Sc.
Claudianum in case of persistent
intercourse on the part of a free
woman with another person's
slave in spite of the dissent and
denunciation of the owner.
§ 161. Minor or intermediate
loss of status is loss of citizenship
unaccompanied by loss of liberty,
and is incident to interdiction of
fire and water.
§ 162. There is the least capi-
tis deminutio retaining citizenship
andfreedom when a man's position
in the family only is changed,
which occurs in adoption, coemp-
tion, and in the case of those
given in mancipium to be after-
wards manumitted, so that after
each successive mancipation and
manumission a capitis deminutio
takes place. •
§ 163. Not only by the two
greater losses of status are rights
of agnation extinguished, but also
by the least : accordingly, if one
of two children is emancipated,
the elder cannot on the father's de-
cease be guardian to the younger
by right of agnation.
§ 164. When agnates are en-
titled to be guardians, it is not
all who are so entitled, but only
those of the nearest degree.
I. §§ 159-164.] DE CAPITIS MINVTIONE 95
§ 160. Ulpian also refers to the penalty incurred by incensi
(11, 11 cum inceiisus aliquis venierit ; cf. Cic. Pro Caec. 34, 99).
The lex, the name of which is now illegible, may possibly be the
lex Aelia Sentia, which by one of its provisions recalled into slavery
dediticii, who resided in Rome or within a certain distance from it
(§ 27), though there is the difficulty that it would be inaccurate to
speak of such freedmen suffering loss of citizenship as well as
liberty. Other grounds of reducing to slavery existed at various
times, as surrender by the pater patratus to a foreign state for an
offence against international law, Livy, 5, 36, or evasion of military
service (populus quum eum vendidit qui miles factus non est, Cic.
Pro Caec. 34, 11 ; Ulp. 11, 11), or capture by the enemy, § 129, or
condemnation for a capital crime, which made the convict a slave
of punishment (servus poenae, Inst. 1, 16, 1), i.e. reduced him to
penal servitude, or condemnation of a freedman for ingratitude
towards his patron (libertiis ingratus circa patromim condemnatus,
ibid.) whereupon he forfeited his freedom, or collusion of a freeman
in consenting to be sold as a slave on condition of sharing the
purchase-money (cum liber homo, major viginti annis, ad pretium
participandum sese venundari passus est, Inst. 1, 3, 4). After the
price had been paid, the vendor disappeared, the supposed slave
recovered his liberty by a liberalis causa, and the purchaser was left
without his slave and without his money. The praetor, to check
this fraud, allowed the purchaser to defend himself by exceptio doli,
and senatusconsulta subsequently enacted, that if the person sold
was twenty years old at the time of the sale or partition of the
price, he should really become the slave of the purchaser, Dig.
40, 12, 7 pr. 1.
The libertus ingratus would exemplify a fall from the condition
of libertinus to that of servus ; any of the other instances might be
a case of a fall from ingenuus to servus ; the fall from ingenuus to
libertinus would also be an analogous kind of degradation. Thus by
the Sc. Claudianum a freewoman (ingenua) who had commerce with
a slave with the consent of his proprietor procreated slaves without
forfeiting her own freedom, § 84 ; she lost status, however, for she
became the freedwoman of the proprietor, Paulus, 4, 10, 2 • Tac.
Ann. 12, 53.
§ 161. Under the category of Civitas, as there are three classes,
civis, latinus, peregrinus, so there are three possible degradations,
the fall from civis to Latinus, instanced in the emigrant to a Latin
colony, § 131 ; the fall from civis to peregrinus, instanced in the
interdiction or deportation of a civis ; and the fall from Latinus to
peregrinus, instanced when the same events happened to Latinus.
A lapse from liber to servus was a dissolution of marriage, for
96 DE PERSONIS [i. §§ 159-164.
servus was incapable of matrimony : a lapse from civis to Latinus
or peregrinus was a dissolution of civil wedlock (connubium), for
this could only subsist between cives ; but if both parties consented,
they might continue in gentile wedlock (matrimonium), Cod. 5, 17, 1.
The confiscation of property or universal succession of the fiscus,
which accompanied greatest and minor loss of status, was not an
incident of the latter kind of capitis minutio (e. g. it did not happen
when civis became Latinus by emigration ; and an alien, as
a citizen became by deportation, was capable of holding property),
but was a special provision of the criminal code. (For an account
of the different Roman forms of banishment see Mommsen, Rom.
Strafr. 5, pt. 7.)
The political elements of civitas, suffragium and honores, were
forfeited by infamy (infamia) or loss of civic honour (existi-
matio) ; and hence arises the question whether infamia is to
be regarded as a capitis minutio (see, on this subject, Greenidge,
Infamia).
Austin, in laying the bases of jurisprudence, has referred to the
law of honour to illustrate the difference of positive law from all law
not positive ; but in Kome the law of honour, as the law of reli-
gion in most modern states, was partially taken up into positive
legislation. The public sentiments of esteem and disesteem, that is
to say, were armed with political sanctions, and thus certain pro-
ceedings were discouraged which were not otherwise prohibited by
positive law, and the due application of these sanctions was the
function of a special organ appointed by the legislator. This
organ was the censor, who had both a discretionary power of
branding a man with ignominy by an annotation against his
name in the civic register (notatio, subscriptio censoria), and, as
revisor of the lists of the senate, the knights, and the tribes,
enforced the disabilities of infamy by removing the infamous
person from any of those bodies. As the Comitia Centuriata,
as well as the Comitia Tributa, had in later times been con-
nected with the division into tribes, the tribeless man (aerarius)
forfeited his vote and became incapable of military service, Livy,
7, 2. These graver consequences of infamy were not in the dis-
cretion of the censor, but governed by strict rules of consue-
tudinary law (jus moribus introductum). The law of infamia,
as established by the censor, came to be also recognized by the
praetor in his edict (cf. Dig. 3, 1, 1, 8 Qui edicto praetoris ut
infancies notantur), who made infamy not only a consequence
of condemnation in any criminal trial (publicum judicium), but
also of condemnation in certain civil actions founded on delict,
such as theft, rapine, outrage, fraud ; or on certain contracts, such
I. §§ 159-164.] DE CAPITIS MINVTIONE 97
as partnership, agency (mandatum), deposit ; or on quasi contract,
such as guardianship ; or of insolvency (bona possessa, proscripta,
vendita) ; or, without any judicial condemnation, was annexed to
certain violations of the marriage laws, such as bigamy or the
marriage of a widow before the termination of her year of mourning,
and to the pursuit of certain professions, such as that of stage-
player or gladiator. In some of these latter instances consuetu-
dinary law, as above intimated, inflicted positive sanctions on acts
that originally had only been prohibited by the law of honour.
In view of these consequences, infamia may at one time have been
regarded as capitis minutio. Cicero pro Quinctio speaks of a
suit involving existimatio as a causa capitis (cf. pro Kosc. Com. 6),
and Tertullian, the father of the Church, who was noted for his
knowledge of Roman law, and possibly was identical with the jurist
of that name, of whom five fragments are preserved in the Digest,
speaks of infamia as capitis minutio, De Spectaculis, 22, Scenicos
manifesto damnant ignominia et capitis deminutio. But the poli-
tical rights of civitas had ceased to be of importance under the
emperors, and we are expressly told in the Digest that only death
or loss of citizenship can be understood to affect a man's caput,
Modestinus in Dig. 50, 16, 103.
Besides extinguishing the political or public elements of civitas,
infamia affected to a certain extent its private elements, both
commercium and connubium ; the former, as we shall see, in respect
of the office of cognitor, 4 § 124 (cf. Dig. 3, 1, de postulando), and
the latter in respect of the disabilities of celibacy under the lex
Julia, which were not removed by marriage with an infamis. Both
these classes of disability had practically vanished even before they
were abolished in the time of Justinian.
This seems the proper place to notice certain inequalities of con-
dition, analogous to the old distinctions of status, which grew up
subsequently to the time of Gaius in the later ages of Kome, and
some of which survived the fall of the Boman empire. From the
establishment of the empire the army was caressed by each suc-
ceeding despot, and privileges of various kinds were so accumulated
on the military service, that the relation of the soldiery to the rest
of the world very much resembled the ancient relation of Bomanus
to peregrinus. The pre-eminence of the military caste was the result
of elevation ; other unprivileged castes were created by depression.
As the new religion grew to political power, zealous legislators were
eager to promote its ascendency by the means of political sanctions.
Pagans, Jews, heretics, apostates, protestants, papists, were suc-
cessively frowned upon by the legislator, and for a long season
subjected to incapacities and disabilities as great as, or greater than,
98 DE PERSONIS [i. §§ 159-164.
those which weighed upon infames : until by a change in political
conceptions these inequalities of right have been again levelled and
almost obliterated in most of the codes of modern Europe. See also
the remarks on Colonatus, 3 § 145.
§ 162. In the category of domestic position there are three classes,
(i) sui juris, or paterfamilias and materfamilias ; (2) filiusfamilias
and filiafamilias ; and (3) mancipium : but there are only two possible
degradations, (i) from sui juris to alieni juris, which occurs in
adrogation and the in manum conventio of a woman previously
independent ; and (2) from films- or filiafamilias to mancipium,
which occurs in noxal surrender, in emancipation, in adoption
as implying mancipation, and in the remancipation of a woman by
her husband or the person who held her in manu in virtue of a
fiduciary coemption. The descent from sui juris to mancipium
cannot occur, because the only persons capable of passing into the
condition of mancipium by the process of mancipation were filius-
and filiafamilias and women in manu, i. e. persons already alieni
juris.
In the exposition of capitis minutio, and particularly of the third
and last kind, I have adopted the theory of Savigny as being the
most tenable, and forming the most harmonious system of legal
conceptions. I must now briefly notice an opposing theory, and
the objections that may be raised against that of Savigny. Some
expositors hold that capitis minutio minima did not necessarily and
essentially involve any degradation, any downward step on the
ladder of status, but might be merely a horizontal movement on the
same platform, a transit from family to family, a disruption of
the ties of agnation, a cessation of membership in a given civil
group. (See on this subject Dr. Moyle's Excursus, Inst. Bk. 1, and
Professor Goudy's App. to Muirhead's Roman Law, second ed., p. 426,
where Mommsen's explanation is given.) This opinion is founded
on the authority of Paulus, undeniably an eminent juris auctor,
who defines the least diminution of head as follows : Dig. 4, 5, 11.
' Capital diminution is of three orders, greatest, minor, least ; as
there are three things that we have, liberty, citizenship, family.
The universal loss of freedom, citizenship, family, is the greatest
capital diminution ; loss of citizenship while liberty is retained is
minor capital diminution ; when liberty and citizenship are retained,
and family only is changed, there is the least capital diminution.'
Consistently with this definition Paulus affirms that the children
of adrogatus suffer capitis minutio minima : Dig. 4, 5, 3 pr. ' The
children who follow an adrogated parent suffer capital diminution,
as they are dependent and have changed family ' : here, then, if
Paulus is right, we have capitis minutio without any degradation,
I. §§ 159-164.] DE CAPITIS MINVTIONE 99
any loss of .rank ; for the children of adrogatus have the same
status of filiifamilias after their father's adrogation as they had
before, although in a different family. The proposition, however,
that the children of adrogatus suffer capitis minutio is not confirmed
by any other jurist, and Savigny supposes that the doctrine was
peculiar to Paulus, and was in fact inaccurate. Another objection
to the theory of Savigny, though not so serious as the opposing
authority of Paulus, is presented by the operation of in manum
conventio.
When an independent woman made a coemption she undoubtedly
declined in status, as before coemption she was sui juris, and after
coemption she is filiafamilias. But a filiafamilias who made a
coemption apparently suffered no degradation: the definitive result
of the coemption leaves her, as before, filiafamilias, and that,
apparently, without having passed through any lower stage ; for
Gaius expressly says that the lex mancipii, or formula of mancipa-
tion in coemption, was not calculated to reduce the woman to a
servile condition, § 123. Gaius tells us, however, that coemption
operates a capitis minutio, § 162, without limiting the effect to the
case of a woman sui juris. The operation of coemption to produce
capitis minutio is also mentioned by Ulpian, and again without any
express limitation to the case of an independent woman: 11, 13.
' There is least capital diminution when both citizenship and freedom
are unimpaired, and only position in household life is changed, as
occurs in adoption and subjection to hand.' If filiafamilias under-
went capitis minutio when she made a coemption, her case dis-
proves our theory that all capitis minutio requires degradation : but
Savigny assumes that, though in these passages there is no express
limitation to the case of independent women, yet this limitation
must be understood ; and there is nothing outrageous in this
supposition.
While, however, these objections to the hypothesis of Savigny
are doubtless serious, on the other hand they are compensated by
legal facts which seem absolutely irreconcilable with the adverse
hypothesis, the cases of Flamen Dialis and Virgo Vestalis. Gel-
lius, 1, 12. 'As soon as a vestal virgin is selected and conducted
to the shrine of Vesta and delivered to the pontifices, she instanta-
neously, without emancipation and without capital diminution,
is freed from parental power and acquires testamentary capacity.
.... Moreover, in the commentary of Labeo on the Twelve Tables
it is stated that a vestal virgin is neither heiress-at-law to any one
who dies intestate nor, if she herself die intestate, leaves any heir-
at-law, and that in this event her property lapses to the state.'
For Flamen Dialis, see 3 § 114. If mere transit from a family
H 2,
100 DE PERSONIS [i. §§ 159-164.
and ceasing to belong to a given group of agnates constituted
capitis minutio, and was its definition, then the vestal virgin must
inevitably have suffered capitis minutio ; the fact that she did not,
in spite of leaving her family and snapping the agnatic tie, is at
once conceivable, on the supposition that there is no capitis minutio
without degradation.
Unless capitis minutio minima involved a downward step on the
stair of status, it has no analogy to the other forms of capitis
minutio, and it is not obvious why it should have the same generic
appellation, or why it should be handled in the same department of
the code. The rupture of the ties of agnation, extinguishing rights
of intestate succession, might be a loss, but it was not a loss from
inferiority of privilege ; it was a loss of an equal among equals ; it
was more like the loss of dos which a husband might incur by
divorce of his wife, or an heir by neglecting to accept a succession
within the appointed period (cretio), 2 § 164 ; neither of which persons
were said to undergo capitis minutio, because neither of them
suffered a reduction of the universitas juris called status.
On the whole, then, Savigny seems justified in considering the
definition given by Paulus and his statement respecting the children
of adrogatus as inexact. f*aulus himself, in speaking of emancipa-
tion, implies the true conditions of capitis minutio : Dig. 4, 5, 3
Emancipate filio et ceteris personis capitis minutio manifesto accidit,
cum emancipari nemo possit nisi in imaginariam servilern causam
deductus ; aliter atque cum servus manumittitur, quia servile caput
nullum jus habet ideoque nee minui potest.
Although rupture of the ties, and forfeiture of the rights, or
release from the duties, of agnation, were not the essence of capitis
minutio minima, yet they were among its principal consequences.
The capite minutus lost his claim as suus heres at civil law, that is,
his right to succeed to an intestate ascendent, or to be instituted
heir in his will or formally disinherited. These effects of capitis
minutio were, however, counteracted to some extent by jus prae-
torium or the legislation of the praetor (bonorum possessio unde
liberi : and contra tabulas). He also lost his right as legitimus
heres at civil law, that is, his right to succeed as nearest agnate to
an intestate collateral ; and here the praetor only so far interposed
to assist the capite minutus, as, in default of all persons entitled
as nearest agnates, to call him to the succession in the inferior order
of cognates (bonorum possessio unde cognati). The collateral civil
heir was called legitimus heres (statutory heir) because his title was
founded on the statutes of the Twelve Tables, which, in default of
self-successors, called the nearest collateral agnates to the succession.
Subsequent statutes created certain quasi agnates or persons entitled
I. §§ 164 a-172.] DE LEGITIMA PATRONOKVM TVTELA 101
to succeed in the same order as if they were agnates, who hence
were also called legitimi heredes ; e. g. children entitled to succeed to
an intestate mother under the Sc. Orphitianum, and mothers entitled
to succeed to intestate children under the Sc. Tertullianum. The
effect of capitis minutio in extinguishing title to succeed was confined
to legitimus heres created by the Twelve Tables, and did not extend
to the legitimus heres created by these subsequent statutes.
Besides the effects of capitis minutio which followed logically
from its consisting in a degradation or fall in status, and from its
involving elimination from a given family or a certain circle of
agnates, it had certain other abnormal or arbitrary consequences —
consequences, that is, which may have once been explicable on
known maxims of the civil law, but which are now inexplicable,
whose rationale had perhaps been lost even in the classical period,
and is certainly now past conjecture. Such is the rule, that capitis
minutio minima of an independent person extinguished the debts of
capite minutus. It is true that the injustice operated by this rule
of civil law in the case of adrogatio was counteracted by the inter-
position of the praetor, but, as at civil law filiusfamilias, though
incapable of rights, was capable of obligations, it is not obvious why
even at civil law a man's debts should have been cancelled by his
degradation from the status of paterfamilias to that of filiusfamilias.
3 § 84, comm. ; 4 § 38.
DE LEGITIMA PATRONORVM TVTELA.
§ 164 «.
(4 uersus in C legi nequeunt)
1 urbe I
(2 uersus in C legi nequeunt)
1 — in urbe Roma
itaque ut seru est
1 sunt 1
(2 uersus in C legi nequeunt)
— ease — I — simile 1
§ 165. Ex eadem lege xn
tabularum liber£arum et in-
puberum libertforum tutela ad
patronos liberosque eorum per-
tinet. quae et ipsa tutela legi-
tima uocatur, ncm quid nomi-
natim ea lege de hac tutela
c&uetur, sed quia proinde ac-
cepta est per interpretationem,
a£que si uerbis legis introducta,
§ 165. The same statute of the
Twelve Tables assigns the guar-
dianship of freedwomen and of
freedmen below the age of puberty
to the patron and the patron's
children, and this guardianship,
like that of agnates, is called statu-
tory guardianship, not that it is
anywhere expressly enacted in the
Twelve Tables, but because the
102
DE PERSONIS
[i. §§164a-172.
esset. eo enim ipso, quod here-
ditates libertorum libertarum-
que, si infestati decessissent,
iusserat lex ad patronos libe-
rosue eorum pertinere, credi-
derunt ueteres uoluisse legem
etiam tutelas ad eos pertinere,
quia et agnatos, quos ad here-
ditatem uocauit, eosdem et tu-
tores esse iusserat.
Inst. 1, 17 pr.
§ 166. Exemplo patronorum
Tecepk&e (sunt et aliae tutelae,
quae et ipsae legitimae uo-
cantur. nam si quis folium
nepotemue ex filio et deinceps
inpuberes, autfiliam neptemue
ex filio et deinceps tarn puberes
quam inpuberes alteri ea lege
mancipio dederit, ut sibi re-
manciparentur, remancipatos-
que manumiserit, legit imus
eorum tutor erit.y
Inst. 1,18.
§ 1 66 a. [DE FIDYCIABIA TV-
TELA."] Sunt et aliae tutelae,
quae fiduciariae uocantur, id
est quae ideo nobis conpetunt,
quia liberum caput mancipatum
nobis uel a parente uel a co-
emptionatore manumiserimus.
Inst. 1, 19.
§ 167. Sed Latinarum et
Latinorum inpuberum tutela,
non omni modo ad manumis-
sores eorum pertinet, sed ad eos
quorum ante manumissionem
(ex iure Quiritium fuerunt ;
unde si ancilla} ex iure Quiri-
tium tua sit, in bonis mea, a
me quidem solo, non etiam a te
manumissa, Latina fieri potest,
et bona eius ad me pertinent,
sed eius tutela, tibi conpetit;
interpretation has procured for it
as much reception as it would
have obtained from express enact-
ment ; for the fact that the statute
gave the succession of a freedman
or freedwoman, when they die
intestate, to the patron and pa-
tron's children, was deemed by
the lawyers of the republic (ve-
teres) a proof that it intended to
give them the guardianship also,
because the Tables, when they call
agnates to succeed to the inheri-
tance, likewise confer on them
the guardianship.
§ 166. The analogy of the pa-
tron guardian led in its turn to
the establishment of other guar-
dianships also called statutory.
Thus when a person mancipates
to another, on condition of re-
mancipation to himself, either a
son or grandson through a son,
who are below the age of puberty,
or a daughter or granddaughter
through a son of whatever age
they may be, he becomes their
statutory guardian when he manu-
mits them after remancipation.
§ 166 a. CONCERNING FIDUCIARY
GUARDIANSHIP.
But there are other kinds of
guardianship, called fiduciary,
which arise when a free person
has been mancipated by his
parent or coemptionator to an
alienee and manumitted by the
latter.
§ 167. The guardianship of
Latins, male or female, below the
age of puberty, does not neces-
sarily belong to their manumitter,
but on whoever before manumis-
sion was their quiritary owner.
Accordingly, a female slave be-
longing to you as quiritary owner,
to me as bonitary owner, if manu-
mitted by me without your join-
ing in the manumission, becomes
a Latin, and her property be-
longs to me, but her guardianship
i. §§ 1640-172.] DE CESSICIA TVTELA
103
nam ita lege lunia cauetur;
itaque si ab eo, cuius et in
bonis et ex iure Quiritium
ancilla fuerit, facta sit Latina,
ad eundem et bona et tutela
pertinent.
to you, by the enactment of the
lex Junia. If the slave is made
a Latin by one who combines the
character of bonitary and quiri-
tary owner, both her effects, and
the guardianship of her, belong to
one and the same person.
DE CESSICIA TVTELA.
§ 168. Agnatis et patronis
et liberorum capitum manu-
missoribus permissum es^ femi-
narum tutelam alii in jure
cedere ; pupillorum autem tute-
lam non est permissum cedere,
quia non uidetur onerosa, cum
tempore pubertatis finiatur.
§ 169. Is autem, cui ceditur
tutela, cessicius tutor uocatur.
§ 170. Quo mortuo aut capite
deminuto reuertitur ad eum
tutorem tutela qui cessit ; ipse
quoque qui cessit si mortuus
aut capite deminutus sit, a ces-
sicio tutela discedit et reuerti-
tur ad eum, qui post eum qui
cesserat secundum gradum in
ea tutela habueritf.
§ 171. Sed quantum ad agna-
tos pertinet, nihil hoc tempore
de cessicia tutela quaeritur, cum
agnatorum tutulae in feminis
lege Claudia sublatae sint.
§ 172. Sed fiduciaries quo-
que quidam putauerunt ceden-
dae tutelae ius non habere, cum
ipsi se oneri subiecerint. quod
etsi placeat, in parente tamen,
qui filiam neptemue aut pro-
neptem alteri ea lege mancipio
dedit, ut sibi remanciparetur,
remancipatamque manumisit,
§ 168. Statutory guardians,
whether agnates or patrons, and
manumitters of free persons, are
permitted to transfer the guard-
ianship of a female ward by
surrender before a magistrate ;
the guardianship of a male ward
is not allowed to be transferred,
because it is not considered
onerous, being terminated by the
ward's attaining the age of pu-
berty.
§ 169. The surrenderee of a
guardianship is called a cessionary
guardian.
§ 170. On his death or loss of
status the guardianship reverts to
the surrenderor, and on the sur-
renderor's death or loss of status
it is devested from the cessionary
and reverts to the person entitled
after the surrenderor.
§ 171. As far, however, as ag-
nates are concerned, in the pre-
sent day there is no such thing
as cessionary guardianship, for
agnatic guardianship over female
wards was abolished by the lex
Claudia.
§ 172. Fiduciary guardians, ac-
cording to some, are also disabled
from transferring their guardian-
ship, having voluntarily under-
taken the burden ; but although
this is the better opinion, yet a
parent who has mancipated a
daughter, granddaughter, or great-
granddaughter, with a condition
104 DE PERSONIS f[. && 173-184.
1_ i J
idem dici non debet, cum is et of remancipation to himself, and
legitimus tutor habeatur, et manumitted her after reman-
non minus huic quam patronis cipation, should be excepted from
honor praestandus sit. tne rule> for he is ranked with
statutory guardians, and has the
same privilege as the patron
of a manumitted slave.
§ 164 a. As in default of agnates the inheritance by the law of the
Twelve Tables devolved on the gens it may be inferred .by the
reasoning adopted in § 165 that the guardianship passed to it also.
So it is probable that at the beginning of the lacuna Gaius made
mention of the statutory guardianship of the Gentiles, and that this
is the passage on the subject referred to in 3, 17. As to the nature
of the gens, see Introduction.
§ 166 a. Cf. §§ 115, 175, 195 a.
§ 167. It seems anomalous that a Latin, i.e. a non*civis, should
have been a subject of wardship : for as tutela is an institute of jus
civile (§§ 142, comm*, 189), i.e. jus civium, we should have expected
that, as in the case of patria potestas, both pater and filius must be
cives Romani, § 128, so here both parties, the ward as well as the
guardian, must of necessity be cives RomanL The anomaly, how-
ever, was expressly enacted by the lex Junia : which further departed
from the law of the Twelve Tables by separating the guardianship
from the right of succession ; for it gave the guardianship to the
person who before the manumission had been quiritary owner, but
the right of succession to the person who had previously been
bonitary owner. Latinus was not only capable of being a ward,
but also of being a guardian, Fragmenta Vaticana, 193; that is,
though he was incapable of being a testamentary guardian, § 23,
he could, it would seem, be made a tutor dativus, that is, appointed
by a magistrate, § 185.
§ 168. In later Eoman law, when the interest of the ward and not
that of the agnates was principally regarded, . guardianship became
inalienable. Similarly in English jurisprudence guardianship is
said not to be capable of assignment or transfer, because it is not
a right but a duty.
DE PETENDO ALIO TVTORE.
§ 173. Praeterea senatus- § 173. Moreover, a decree of
consulto mulieribus permissum the senate permits female wards
est in absentia tutoris locum to demand a substitute in the
alium petere ; quo petito prior Place of an absent guardian, who
desinit; nee interest quam longe is thus superseded: and the dis-
absit is tutor tance of his residence from her
domicil [provided it amounts to
absence] is immaterial.
I. §§ 173-184] DE PETENDO ALIO TVTORE
105
§ 174. Sed excipitur, ne in
absentis patroni locum liceat
libertae tutorem petere.
§ 175. Patroni autem loco
habemus etiam parentem, qui
ex eo, quod ipse sibi .rewan-
cipatara filiam neptemue aut
proneptera manumiait, legiti-
mam tutelam nactus est. (serf)
huius quidem liberi fiduciarii
tutoris loco numerantur; pa-
troni autem liberi eawdem
tutelam adipiscuntur, quam et
pater eorum habuit.
§ 176. Sed aliquando etiam
in patroni absentis locum per-
mittitur tutorem petere, ueluti
ad hereditatem adeundam.
& 177. Idem senatus censuit
•
et in persona pupilli patroni
filii.
§ 178. Nam e£ lege lulia de
maritandis ordinibus ei, quae
in legitima tutela pupilli sit$
permittitur dotis constituendae
gratia a praetore urbano tuto-
rem petere.
§ 179. Sane patroni filius
etiamsi inpubes sit, libertae
efficietur tutor, quamquam in
nulla re auctor fieri potest,
cum ipsi nibil permissum sit
sine tutoris auctoritate agere.
§ 180. Item si qua in tutela
legitima furiosi aut muti sit,
permittitur ei senatusconsulto
dotis constituendae gratia tuto-
rem petere.
§ 181. Quibus casibus sal-
uam manere tutelam patrono
patronique filio manifestum est.
§ 174. But an exception is
made in favour of an absent
patron, who cannot be superseded
on the application of a freed-
woman.
§ 175. Eanked with patrons is
the parent who by mancipation,
remancipation, and manumission
of a daughter, granddaughter, or
great-granddaughter, has become
her statutory guardian. His sons
only rank as fiduciary guardians,
unlike a patron's sons, who suc-
ceed to the same form of guardian-
ship as vested in their father.
§ 1 76. For a special and limited
purpose the senate permits even
the place of a patron in his ab-
sence to be filled by a substitute ;
for instance, to authorize the
acceptance of an inheritance.
§ 177. The senatusconsult gives
similar permission when a pa-
tron's son is himself a ward.
§ 178. For likewise the lex
Julia, regulating the marriages of
the various orders, permitted a
woman whose statutory guardian
was himself a ward to apply to
the praetor of the city to appoint
a guardian for the purpose of
constituting her dower.
§ 1 79. For a patron's son even
before the age of puberty is a
freedwoman's guardian, although
unable to authorize any proceed-
ing, being himself disabled from
acting without his guardian's
authorization.
§ 180. Also a woman whose
statutory guardian is a lunatic or
dumb is permitted by the senatus-
consult, for the purpose of settling
her dower, to apply for a substitu-
tive guardian.
§ 181. In which cases the con-
tinued guardianship of the patron
or patron's son is undisputed.
106
DE PERSONIS
[i. §§ 173-184.
X
§ 182. Praeterea senatus
censuit, ut si tutor pupilli
pupillaeue suspectus a tutela
remotus sit, siue ex iusta causa
fuerit excusatus, in locum eius
alius tutor detur, quo facto
prior tutor amittit tutelam.
§ 183. Haec omnia similiter
et Romae et in prouinciis ob-
seruantur, scilicet (ut Romae
a praetorey et in prouinciis a
praeside prouinciae tutor peti
debeat.
§ 184. Olim cum legis ac-
tiones in usu erant, etiam ex
ilia causa tutor dabatur, si
inter tutorem et mulierem pu-
pillunme lege agendum erat ;
nam quia ipse tutor in re sua
auctor esse non poterat, alius
dabatur, quo auctore legis
actio perageretur ; qui dice-
batur praetorius tutor, quia a
praetore urbano da&atur. sed
post sublatas legis actiones
quidam putant bane speciem
dandi tutoris in usu esse de-
siisse, aliis autem placet adtmq
in usu esse, si legitimo iudicio
a^atur.
Ulp. 11, 24; Inst. 1,21,3.
§ 182. The senate further de-
creed that if the guardian of a
male or female ward is suspected
of misconduct and removed from
office, or if he alleges valid grounds
for declining to act and is relieved
of his functions, a substitute shall
be appointed by the magistrate,
and on his appointment the office
of the former guardian shall deter-
mine,
§ 183. These rules are in force
both in Rome and in the pro-
vinces, but in Rome application
foj* the appointment of a tutor
must be made to the praetor ; in
the provinces, to the governor of
the province.
§ 184. During the era of litiga-
tion by statute-process [4 § 10],
another cause of appointing a
substitute was the imminence of
statute-process between the guar-
dian and the woman or ward ;
for as the guardian could not give
his authority in respect of his own
suit, another guardian was ap-
pointed to authorize the proceed-
ings in the action, who was called
a praetorian guardian, because he
was appointed by the praetor of
the city. But some hold that
since the abolition of statute-pro-
cess this mode of appointing a
guardian ceased to be used, others
maintain that it is still the prac-
tice on the occasion of a statutory
suit (4 § 103).
name ajid date of this senatus-
§ 173. Of. Ulp. 11, 22. The
consultum cannot be ascertained.
§ 178. Gaius, as already stated, wrote a special treatise or com-
mentary on this important law relating to marriage.
§ 1 79. The law was changed by Justinian, who enacted that no
one could become guardian who had not attained his majority,
i.e. completed twenty-five years of age, Inst. 1, 25, 13 ; Cod. 5, 30, 5.
The fact of not having attained this age had previously been ground
of excuse.
§ 182. Cf. Inst. Just. 1, 26. The actio suspecti tutoris for the
removal of the guardian from his office could be maintained by any
i.§§185-188.] DE ATILIANOTVTOREETIVLIOTITIANO 107
person in the interest of the ward. If removed on account of
fraud the guardian was infamis, but not so if it was simply for
negligence.
§ 183. The ambiguity of the Latin language leaves it doubtful
whether in the foregoing paragraphs, §§ 173, 176, 180, 182, Gaius
refers to one or several senatusconsults. From Dig. 26, 1, 17, how-
ever, it appears that, complura senatusconsulta facta sunt ut in
locum furiosi et muti et surdi tutoris alii tutores dentur: i.e. the
subject often occupied the attention of the senate. The reason was
that the lex Atilia, presently mentioned, had received, after the
wont of the ancient jurists, a strictly literal interpretation, and was
not deemed to authorize the substitution of a guardian when the
existing guardian was incapacitated.
DE ATILIANO TVTOEE, ET EO QYI EX LEGE IVUA ET TITIA DATVR.
§ 185. Si cui nullus omnino
tutor sit, ei datur in urbe
Roma ex lege Atilia a prae-
tore urbano et inaiore parte
tribunorum plebis, qui Atilia-
mis tutor uocatur ; in pro-
uinciis uero a praesidibus pro-
uinciarum (ex} lege lulia et
Titia. Inst. 1, 20 pr.
§ 186. Et ideo si cui testa-
mento tutor sub condicione aut
ex die certo datus sit, quamdiu
condicio aut dies pendet, tutor
dari potest ; item si pure datus
fuerit, quamdiu nemo heres
existat, tamdiu ex his legibus
tutor petendus est ; qui desini£
tutor esse, posteaquam aliquis
ex testamento tutor esse coe-
perit. Inst. 1, 20, 1.
§ 187. Ab hostibus quoque
tutore capto ex his legibus
tutor peti debet; qui desinit
tutor esse, si is qui captus est
in ciuitatem reuersus fuerit :
§ 185. Failing every other form
of g^rdian, at Rome a guardian
is appointed under the lex Atilia
by the praetor of the city and the
major part of the tribunes of the
people, called an Atilian guardian:
in the provinces, a guardian is
appointed by the president of the
province under the lex Julia and
Titia.
§ 186. Accordingly, on the ap-
pointment of a testamentary guar-
dian subject to a condition, or on
an appointment which is not to
commence till after a certain time,
during the pendency of the con-
dition and before the time has
come, a substitute is appointed
by these magistrates ; also, when
the appointment of a testamentary
guardian is not subject to a con-
dition, so long as no heir has
entered under the will, a tempo-
rary guardian may be obtained
under those statutes, whose office
will determine as soon as the
guardian becomes entitled under
the will.
§ 1 87. On the hostile capture of
a guardian the same statutes regu-
late the appointment of a substi-
tute to continue in office until the
return of the captive ; for if the
108
DE PERSONIS
[i. §§ 189-193.
nam reuersus recipit tutelam
iure postliminii. Inst. 1, 20, 2.
§ 188. Ex his apparet, quot
sint species £utelarum. si uero
quaeramus in quot genera hae
species d^ducantur, longa erit
disputatio ; nam de ea re ualde
ueteres dubitauerunt, nosque
diligentius hunc tractatum
executi sumus et in edicti
interpretatione et in his libris
quos ex Q. Mucio fechnus. hoc
£antisper sufficit admonuisse,
quod quidam quinque genera
esse dixerunt, ut Q. Mucius ;
alii tria, ut Ser. Sulpicius ; alii
duo, ut Labeo ; alii tot genera
esse crediderunt, quot etiam
species essent.
captive returns he recovers the
guardianship in virtue of his re-
habilitation.
§ 188. The foregoing statement
shows the various forms of guar-
dian : the question of the number
of orders to which these forms
may be reduced involves a long
discussion, for it is a point on
which the ancient jurists differed
greatly ; and as I have examined
it at length, both in my interpre-
tation of the edict and in my
commentary on Quintus Mucius,
for the present occasion it may
suffice to observe that some, as
Quintus Mucius, make five orders ;
others, as Servius Sulpicius, three ;
others, as Labeo, two ; others make
as many orders as there are forms
of guardian.
§ 188. In the time of Justinian there were three forms of guardian,
— testamentary, or appointed by will ; statutory, or prescribed by
the law in case of intestacy ; and magisterial (dativus), or appointed
by the magistrate, in default of a testamentary or statutory guardian.
The other forms of guardian had become obsolete, except a kind of
fiduciary one, Inst. 1 , 1 9, in consequence of the change in legislation.
For an account of Q. Mucius Scaevola (Consul B.C. 95) and
Servius Sulpicius Kufus (Consul B.C. 51), who maybe regarded as
the fathers of Roman jurisprudence, see Roby, Intr. to Justinian's
Digest, pp. cvi and cxi.
DE MVLIERVM TVTELA.
§189. Sed inpuberes quidem
in tutela esse omnium ciuita-
tium iure contingit, quia id
naturali rations conueniens est,
ut is qui perfectae aetatis non
sit, alterius tutela regatur. nee
fere ulla ciuitas est, in qua non
licet parentibus liberis suis in-
puberibus testamento tutorem
dare ; quamuis, ut supra dixi-
mus, soli ciues Romani uidean-
tur liberos suos in potestate
habere. Inst. 1,20, 6.
§ 189. The wardship of children
under the age of puberty is part
of the law of every state, for it
is a dictate of natural reason that
persons of immature years should
be under the guardianship of
another, in fact there is scarcely
any state which does not permit a
parent to nominate a testamentary
guardian for his children under
the age of puberty, though, as we
have before stated, only citizens
of Rome appear to be invested
with parental power.
i. §§ 189-193.] DE MVLIERVM TVTELA
109
§ 190. Feminas uero perfe-
ctae aetatis in tutela esse fere
nulla pretiosa ratio suasisse
uidetur ; nam quae uulgo credi-
tur, quia leuitate animi plerum-
que deeipiuntitr et aequum
erat eas tutorum auctoritate
regi, magis speciosa uidetur
quara uera ; mulieres enim,
quae perfectae aetatis sunt,
ipsae sibi negotia tractant et in
quibusdam causis dicis gratia
tutor interponit Auctoritatem
suam,8aepeetiam inuitus auctor
fieri a praetore cogitur.
§ 191. Unde cum tutore
nullum ex tutela iudicium mu-
lieri datur ; at ubi pupillorum
pupillarumue negotia tutores
tractant, ei post pubertatem
tutelae iudicio rationem red-
dunt.
§ 192. Sane patronorum et
parentum legitimae tutelae uim
aliquam habere intelleguntur
eo, quod hi neque ad testamen-
tum faciendum neque ad res
mancipi alienandas neque ad
obligationes suscipiendas au-
ctores fieri coguntur, praeter-
quam si magna causa alienan-
darum rerum mancipi obliga-
tionisque suscipiendae inter-
ueniat ; eaque omnia ipsorum
causa constituta sunt, ut, quia
ad eos intestfatarum mortuarum
hereditates pertinent, neque per
testamentum excludantur ab
hereditate neque alienatis pr<?-
tiosioribus rebus susceptoque
acre alieno minus locuples ad
eos hereditas perneni&t.
§ 193. Apud peregrines non
similiter ut apud nos in tutela
aunt feminae; sed tamen ple-
§ 1 90. But why women of full
age should continue in wardship
there appears to be no valid reason ;
for the common allegation, that on
account of levity of dispositi on they
are readily deceived, and that it
is therefore right that they should
be controlled by the sanctionary
power of a guardian, seems rather
specious than true, for women of
full age administer their own pro-
perty, and it is a mere formality
that in some transactions their
guardian interposes his sanction ;
and in these cases he is frequently
compelled against his own will
to give his sanction.
§ 191. Accordingly, a woman
has not the tutelary action against
her guardian ; whereas since the
guardians of youthful wards, both
male and female, administer their
wards' property, they are liable
to be sued on account of such ad-
ministration when the ward has
come to the age of puberty.
§ 192. The statutory guardian-
ship of patrons and parents is not
purely ineffective, as they cannot
be compelled to give their sanction
to a will or to the alienation of
mancipable property, or to the
undertaking of obligations, unless
there are very weighty reasons for
the obligation or the alienation ;
but this rule is in their own
interest as heirs of intestacy, and
is designed to prevent their loss
of the estate by testamentary
disposition, or the diminution of
its value by debt or by alienation
of a considerable portion.
§193. In other countries, though
not under the same tutelage as
at Eome, women are generally
110 DE PERSONIS [i. §§ 189-193.
rumque quasi in tutela sunt ; subject to a quasi tutelage : for
ut ecce lex Bithynorum, si quid instance, the law of Bithynia
mulier contrah&t, maritum au- requires the contract of a woman
ctorem esse iubet aut filium *° be sanctioned by her husband
eius puberem. or bJ a son above tne aSe of
puberty.
As women were capable of administration, the functions of the
guardian, which in the case of infants were either administrative
or sanctionative, in the case of women were confined to sanctioning.
Pupillorum pupillarumque tutores et negotia gerunt et auctoritatem
interponunt : mulierum autem tutores auctoritatem dumtaxat inter-
ponunt, Ulp. 11, 25. It is transparent that the wardship of women
after full age was not designed to protect their own interests, but
those of their heirs apparent, their agnates. Originally the autho-
rization of the guardian was not sufficient to validate the will of an
independent woman : it was necessary that she should first break
the ties of agnation, and separate from her family by means of a
coemption (with her guardian's sanction) and subsequent reman-
cipation and manumission. She then, with the sanction of the
manumissor, in his character of fiduciary guardian, could make
a valid will. In the time of Gaius, Hadrian having abolished
the necessity of coemption, to make a valid will an independent
woman only required the sanction of her guardian, 2 § 112, and
Claudius, as we have seen, had put an end to agnatic guardianship,
§ 171.
When a woman was liberated from the administrative control of
her guardian, and the guardian had no longer any interest in the
succession to her property, the simplest course would have been to
declare her dispositions valid without his sanction — to declare her
no longer a ward. But with characteristic conservatism of forms,
Roman law, to avoid the open change, declared the auctoritas still
necessary, but made it compulsory instead of voluntary — gave the
ward a power of extorting it from the guardian, 2 §§ 80-85. So
the act whereby a testamentary heir accepts an inheritance was
originally absolutely voluntary : but when trusts (fidei commissa)
were introduced, and the heir as trustee or fiduciarius by ground-
lessly refusing to make the necessary aditio, which in this case was
the merest form, could produce intestacy, and thus deprive the
beneficiary, fidecommissarius, or cestui que trust of the provision
destined for him by the bounty of the testator : instead of declaring
the aditio of the heres unnecessary to the acquisition of the fortune
by fideicommissarius ; or that in such a case the beneficiary should
be deemed to be a direct substitutus of the heres ; or that the
vexatious refusal of the heres should be deemed to be an aditio and
I. §§ 189-193.] DE MVLIERVM TVTELA 111
restitutio ; the legislator ordained that the heres should be com-
pelled to make aditio in order to complete the title, 2 § 258, comm.
Again, the terms of the security given by the guardian (rem pupilli
salvam fore) against dilapidation of the estate of the ward made the
responsibility of the guardian depend on his actual administration ;
so that he was not responsible if the estate went to ruin in con-
sequence of his total abstention from the performance of his duties.
To protect the ward against this contingency, instead of altering the
formula of the satisdatio, and making the liability of the guardian
depend on his appointment and not on his acting ; the law com-
pelled him to proceed to some act of guardianship, in order to bring
him under the unchanged terms of his security ; Dig. 46, 6, 4, 3.
In all these and other cases a compulsory act was substituted for
a voluntary act for the sake of giving the law an outward appearance
of continuity. At last, at some period before the epoch of Justinian,
the tutelage of women above the age of puberty had ceased in form
as well as in substance, and no sanction of a guardian, whether
voluntary or compulsory, was required.
It is to be observed, that as women were gradually enfranchised
from their disabilities, they also forfeited some of their original
privileges. It was a rule of the administration of justice that
while error of fact might be pleaded to defend a person against the
consequences of his own acts or omissions, no one should be allowed
to allege an error of law, Dig. 22, 6, 9 pr. An exception however
was made in favour of minors, of soldiers, of the utterly uneducated
(rustici), and of women. Against their ignorance of rules of law,
particularly those rules of jus civile which are not, like rules of
jus gentium or natural e, the almost self-evident dictates of reason
and common sense, they were relieved by a branch of the praetor's
extraordinary jurisdiction, called in integrum restitutio, a power of
cancellation and rescission, in cases of manifest, collision between
law and equity ; §§ 197-200, comm. This privilege of women
was partially abrogated by a constitution of the Emperor Leo,
A. D. 472; Cod. 1, 18, 13. 'To prevent the indiscriminate revo-
cation by women of all their contracts on the ground of omission
of error, be it enacted, that ignorance of law, whereby a woman
is damnified in her right or property, shall only be a title to
relief in those cases where previous statutes have sanctioned such
relief.'
From § 189 it might appear that Gaius referred the institution
of guardianship to the code of jus gentium. We have, however,
quoted from the Institutes, §§ 142, 154, comm., a passage which
ascribes it to jus civile : and, indeed, no institution confined in its
operation almost entirely to cives, can be supposed to belong to
112 DE PEESONIS [t. §§ 194-196.
ju's gentium or natural law. Moreover, the law of guardianship
has been most variable, not only if we look to different countries,
but also if we look at different periods in the same country ;
and the praetor or chancellor or other authority that has had the
supervision of guardians has always exercised a great latitude of
discretion ; features which again forbid us to ascribe the rules of
wardship to any comparatively immutable code of nature. Tutela
was in fact an old Roman institution, by which the gens or familia
maintained control in its own interest over its weaker members,
who were not subject to patria potestas. It is possible that this
control was at first exclusively exercised by the gens, in whom the
ownership of all land occupied by the gentiles may have been vested,
and that agnatic as well as testamentary guardianship was first
instituted by the law of the Twelve Tables, whereby patricians and
plebeians were put on an equality in respect of private rights. That
the gens was in the habit of taking charge in some way of lunatics
and insane persons we know from the words of the Twelve Tables,
which have come down to us — 'Si furiogus exit, ast ei custos ne
exit, adgnatum gentiliumque in eo pecuniaque eius potestas est.'
Cf. Muirhead, Eoman Law, §§ 26, 28,
QVIBVS MODIS TYTELA FINIATVK.
§194. Tutela autem libe- § 194. Guardianship is termin-
rantur ingenuae quidem trium ated for a freeborn woman by title
(liberorum iure libertinae of being mother of three children,
uero quattuor, si in patroni} for a freedwoman if under statu-
liberorumue eius legitima tu- toiT guardianship of her patron
tela sint; nam ceterae quae or his children by being mother
alterius generis tutores habent, °J.fol" ph^n: those who have
r i j. A A-T ± £j • • i other kinds oi guardians, Atihan
[uelut Atilianos aut fiduciaries ] or fid for instance/are libe-
trmm liberorum rare tutela rated from> wardship by being
liberantur. mothers of three children.
§ 195. Pofest autem pluri- § !95- There are various ways
bus modis libertina alterius by which a freedwoman may have
generis (tutorem} habere, ue- other kin_ds of g^rdians : for
luti si a femina manumissa sit ; m?ta.nce _ m case of ^\ man.u-
i A4-T ,-v 4- * mission by a woman, when she
tune enim e Leqe Atilia petere J , ,. ' , ,,
, , , must request a guardian under the
debet tutorem uel m pro- ^ M^ ^ the ovin
umc<m e lege J«Z)ia et Titia ; under the lex Julia and Titia>
nam in patronae tutela esse gince a female patron cannot be
non potest. her guardian.
§ 195 a. Item si <a> mas- § 195 a. Also on manumission
culo manumissa {fuerit} et by a male, if with his sanction
auctore eo coemptionem fecerit, she makes a coemption, and then
deinde remancipata et manu- is remancipated and manumitted,
I. §§ 194-196.] QVIBVS MODIS TVTELA FINIATVR 113
missa sit, patronum quidem
habere tutorein desinit, incipit
autem habere eum tutorem a
quo manumissa est, qui fidu-
ciarius dicitur.
§ 195 6. Item si patronus
eiusue filius in adoptionem se
dedit, debet liberta e lege Atilia
ud lulia et Titia tutorem pe-
tere.
§ 195 c. Similiter ex isdem
legibus petere debet tutorem
libert&, si patronus decesserit
nee ullum uirilis sexus libero-
rum in familia reliquerii.
§ 196. Masculi autem cum
puberes esse coepermt, tutela
liberantur. puberem autem
Sabinus quidem et Cassius ce-
terique nostri praeceptores eum
esse putan£, qui habitu corporis
pubertatem ostendit, id est eum
qui generare potest ; sed in his
qui pubescere non possunt,
quales sunt spadones, earn
aetatem esse spectandam, cuius
aetatis puberes fiunt ; sed di-
uersae scholae auctores annis
putant pubertatem aestiman-
dam, id est eum puberem esse
existimant qui xini annos ex-
pleuit. 1 Inst. 1, 22 pr.
for the patron then ceases to be
guardian, and is replaced by the
second manumitter, who is called
a fiduciary guardian.
§ 1956. Also on the adrogation
of her patron or his son she must
demand a guardian under the lex
Atilia or Titia.
§ 195 c. Similarly in compli-
ance with the same laws she must
demand a guardian on the decease
of her patron without leaving any
male descendant in the family.
§ 196. For males the attain-
ment of the age of puberty is a
release from wardship. Puberty,
according to Sabinus and Cassius
and the other authorities of my
school, depends on physical de-
velopment, that is, on capacity of
generation ; or in case of im-
potence, eunuchs for instance, on
the completion of the age which
usually implies capacity of gene-
ration. The other school hold
that puberty is to be exclusively
measured by age, that is to say,
that it should always be deemed
to be attained on the completion
by a male of his fourteenth year.
§ 196. All jurists agreed that in the case of impotence, whether
natural or acquired, some fixed date must be assumed as the conven-
tional period of puberty. The Sabinian rule appears to be preserved
in a passage of Paulus : Spadones eo tempore testamentum facere pos-
sunt quo plerique pubescunt, id est, anno decimo octavo, 3, 4 a, 2.
Fourteen was assumed to be the average age of puberty ; but it
was too early, even in the southern climes subject to Eoman legis-
lation, for a minority of constitutions which advance more slowly
to maturity. Eighteen was supposed to be sufficiently postponed
to include most of these cases of retarded development. We have
already, in treating of adrogation, § 106, commentary, met with
the phrase, plena pubertas, denoting eighteen years of age.
114
DE PEKSONIS
[i. §§ 197-200.
DE CVKATORIBVS.
(25 uersus in C legi nequeunt)
§ 197. aetatem per-
uenerit, in qua res suas tueri
possit ; sicut apud peregrinas
gentes custodiri superius in-
dicauimus. Inst. 1, 2, 3.
§ 198. Ex isdem causis et
in prouinciis a praesidibus
earum curatores dari solent.
Inst. 1. c.
§ 197. After release from tute-
lary guardianship the estate of a
minor is managed by a curator
Until he reaches the age at which
he is competent to attend to his
own affairs, and the same rule
obtains in other nations, as we
have already mentioned.
§ 198. Under similar circum-
stances the president of a province
appoints a curator.
DE SATISDATIONE TVTOKVM VEL CVRATORVM.
§ 199. Ne tarn en et pupil-
lorum et eorum qui in curatione
sunt negotia a tutoribus cura-
toribusque consumantur aut
deininuantur, curat praetor, ut
et tu tores ~(ety curatores eo
nomine satisdent.
Inst. 1,24 pr.
§ 200. Sed hoc non est per-
petuum ; nam et tutores testa-
vnento dati satisdare non co-
guntur, quia fides eorum et
diligentia ab ipso testatore pro-
bata est ; et curatores, ad quos
no% e lege curatio pertinet,
sed (qui) uel a consule uel a
praeside prouinciae dantnr,
plerumque non coguntur satis-
dare, scilicet quia satis honesti
electi sunt. Inst. 1. c.
§ 1 99. To protect tutelary wards
and those having a curator from
the destruction or waste of their
property by their guardians and
curators, it is the function of the
praetor to require such guardians
and curators to give security for
due administration.
§ 200. But this is not without
exception, for testamentary guar-
dians are not compelled to give
security, as their integrity and
vigilance have been approved by
the testator ; and curators who
have not been appointed by any
statute, but by the nomination of
a consul or praetor or president
of a province, are generally not
required to give security, their
selection being deemed sufficient
evidence of their trustworthiness.
§ 197. In English jurisprudence there is no distinction corre-
sponding to that between tutor and curator, impubes (pupillus) and
minor (adolescens). Infant and minor are in English synonymous ;
guardianship continues to the attainment of majority, i.e. to the
completion of twenty-one years of age ; and after that the young of
both sexes are considered to be capable of taking care of themselves,
and are free from further control. At Eome wardship (tutela) ceased
at puberty, or, as the law came to be denned, at the age of fourteen
I. §§197-200.] DE CVRATORIBVS 115
for males and twelve for females, ages at which the young manifestly
continue to stand in need of guidance and protection, though
according to Eoman law they were then fully competent to administer
their own property, and to dispose of it by will.
Such protection was provided for them partly by two statutes,
partly by praetorian legislation, (i) The lex Plaetoria, or Laetoria,
was as old as Plautus, who about 186 B.C. makes a youth exclaim:
Lex me perdit quinavicenaria ; metuunt credere omnes, Pseudolus,
303. 'The statute with its five and twenty years prevents my
getting credit.' It made a criminal offence, and subject to a criminal
prosecution (judicium publicum, Cic. de Nat. Deor. 3, 30), what
Cicero calls circumscriptio adolescentium, De Off. 3, 1 5 ; i. e. over-
reaching and circumventing persons below the age of twenty-five.
Such is Savigny's interpretation of judicium publicum, Vermischte
Schriften, 18. Ihering maintains that judicium publicum denotes
in this passage not a criminal prosecution but an actio popularis ;
i.e. a civil action that could be instituted not only by the Minor but
by a common Informer: and he quotes Dig. 26, 10, 1, 6 (cf. Inst.
1, 26, 3) Consequens est ut videamus qui possunt suspectos (tutores)
postulare, et sciendum est quasi publicam esse hanc actionem, hoc est.
omnibus patere. Dig. 12, 2, 30, 3, where quasi publica actio means an
action similar to actio popularis, Geist des Komischen Kechts, § 52,
nn. 158, 159. The circumscription of a minor, like fraudulent mal-
administration by a guardian, rendered the person convicted thereof
infamis. A contractor with a minor might secure himself against
the penalties of the law, if a curator were nominated by the praetor
to advise the minor in respect of the special transaction.
(2) As the lex Plaetoria was only applicable in cases of fraud
(dolus malus, Cic. de Off. 3, 15), the protection it gave to minors
was inadequate : accordingly, the praetor, besides allowing a minor
to set up the plea of minority when sued in an action, proclaimed
in his edict that he would relieve minors who had been damaged
in consequence of inexperience and improvidence by rescission and
cancellation of the proceeding (in integrum restitutio). To obtain
this relief it was not necessary to prove any fraud on the part of
the person who contracted with the minor.
(3) A person who wished to bring an action against a minor
could compel him to obtain from the praetor a curator for the
purpose of defending the particular suit ; whose office ceased as
soon as the special litigation terminated. Marcus Aurelius, under
whom Gaius flourished, enacted that any minor who chose should
be able to obtain from the praetor a general curator (generalis
curator), who then should be charged with the general adminis-
tration (generalis administratio) of his estate, Capitolinus, 10. In
I 2
116 DE PERSONIS [r. §§ 197-200.
view of this option of the minor, Justinian could still say: Inviti
adolescentes curatores non accipiunt praeterquam ad liteni, Inst.
1, 23, 2. 'Unless they choose, minors need not have a curator,
except for a suit.' A minor who had a curator could not aliene
without the consent of his curator: he could incur an obligation
without the consent of his curator, subject to his right of in
integrum restitutio, though, unless he had a curator, persons would
not be very willing to contract with him. Even the existence of
a curator did not deprive the minor of his right of restitution, but
of course it could not be obtained so readily as when he acted
without the advice of a curator. The praetor allowed actiones
utiles against a curator, corresponding to those to which a tutor
was subject.
The tutor and curator were entirely separate functionaries : when
women were under perpetual tutelage, a woman might have both
a tutor and a curator. The curator of a minor must be dis-
tinguished from an agent (procurator), a person invested with
certain rights and duties, which will be explained when we examine
the different kinds of contract. An agent is governed by the in-
structions (mandatum) of his principal : a minor is under the direc-
tion of his curator : the employment of an agent is a private matter,
purely voluntary on the part of the principal ; the curator, like the
tutor, holds a public function, and having one is in some cases
involuntary on the part of the minor.
How exactly the lacuna in § 197 should be filled up is doubtful.
We do not know what is the previous passage referred to.
Besides minors, lunatics and prodigals of whatever age were
committed to the charge of curators. The cura of lunatics and
prodigals is, indeed, older than that of minors, being regulated by
the Twelve Tables, which directed that the nearest agnate should
be curator of a lunatic, and manage the estate of an interdicted
prodigal. In later times it was usual for the praetor or praeses pro-
vinciae to appoint a curator after inquest (ex inquisitione). Paulus
has preserved the form of words in which the prodigal was inter-
dicted : 3, 4 a, 7. ' By custom the praetor interdicts a prodigal
from the administration of his property in the following terms : As
thy profligacy is wasting the estate of thy father and ancestors,
and bringing thy children to destitution, I therefore interdict thee
from the control of thy patrimony, and from all disposition of
property.'
In integrum restitutio, a branch of the praetor's equitable juris-
diction, and one of the most remarkable cases of his cognitio extra-
ordinaria, has been mentioned more than once, and deserves here
a brief explanation. Kestituere in a general sense denotes any
I. §§ 197-200.] IN INTEGRVM RESTITVTIO 117
undoing of a wrong, any replacement of a person or his right in
his or its original condition, whether by the voluntary act of the
wrongdoer, or after action brought, and then either at the invitation
of the judge (in virtue of the clause, ni restituat, 4 § 47), or in
execution of a judicial sentence. But in the phrase we are exam-
ining it denotes the act, not of a private party, but of a magisterial
authority. In integrum restitutio is the restitution by the praetor
of a person to his original legal condition, in cases when some injury
has been done to him by operation of law. The interposition in such
cases of the highest Roman minister of justice bears some analogy
to the use made of the prerogative of the Crown in our own early legal
history. The function of thus overruling the law where it collided
with equity was only confided to the highest magisterial authority,
and even in his hands was governed by the principle that he was only
supposed to act in a ministerial, not in a legislative capacity. Five
grounds or titles (justae causae) to extraordinary relief (extraordi-
narium auxilium) were recognized and enumerated in the edict,
Dig. 4, 1 : intimidation (metus), fraud (dolus malus), absence, error,
minority (aetatis infirmitas). Two, however, of these titles, fraud
and intimidation, had additional remedies in the ordinary course
of procedure (ordo judiciorum), where they were recognized as
grounds of exception and personal action. Thus we find that a
praetor called Octavius introduced the actio and exceptio metus
mentioned by Cicero, Verr. 2, 3, 65, where the actio metus is called
Formula Octaviana, and that the famous Aquilius Gallus, the
colleague of Cicero, introduced the exceptio and the actio doli, Cic.
de Natura Deorum, 3, 30.
The chronological order of the remedy by Action and the remedy
by Restitution, like that of the historical relation of interdict to
action, is disputed. Savigny, §§ 112, 191, 199, holds that the remedy
by Restitution was older than the remedy by Action ; while Vangerow,
§ 185, holds that the remedy by Action was older than the remedy
by Restitution. As remedies they were very different in character,
the effect of a grant of restitution being simply to reinstate a person
in a legal right, which he had lost, not to give him damages on
account of the violation of a right.
There are three conditions of Restitution: (i) The first condition
is a Laesion by the operation of law, i. e. a disadvantageous change
in civil rights or obligations brought about by some omission
or disposition of the person who claims relief. This disadvantage
may either consist in positive loss of acquired property, or in missing
a gain which would not have involved, on the part of another,
a positive loss of acquired property. An instance of such a laesion
would be the loss of property by omitting to interrupt a usucapio
118 DE PERSONIS [i. §§ 197-200.
or by omitting to claim an inheritance, or by making some omission
in procedure. Cf. 4 § 57.
(2) A second condition is some special or abnormal position of the
person who claims relief when such special circumstance is the
cause of the loss which he has suffered. Thus a minor may be
relieved against an injudicious bargain, but not against the casual
destruction of the thing he has purchased, for this loss was not
occasioned by his minority or inexperience. Such abnormal
positions (justae causae) are compulsion, fraud, minority, absence,
error.
(3) A third condition of relief is the absence of various disen-
titling circumstances. Thus relief is granted against the effect
of legal dispositions and omissions, but not against the effect of
delicts. Again the extraordinary relief of in integrum restitutio
is not granted when the courts of law can administer an adequate
remedy.
Originally capitis minutio of a defendant was ground for a resti-
tution, 3 § 84 ; but this ceased at an early period to be anything more
than a formal case of restitution ; for rescission of the adrogation,
adoption, emancipation, whereby a person's debts were extinguished,
was granted as a matter of course without any previous investiga-
tion (causae cognitio), and without any period of prescription like that
which limited the right to pray for restitution.
This was, originally, annus utilis, and in the time of Justinian,
quadriennium continuum or four calendar years, which begin to run,
not from the date of the Laesion, but from the termination of the
Causa, i. e. the abnormal position — minority, absence, compulsion,
deception, error — whereby the Laesion was occasioned. Such at
least is Savigny's and Windscheid's opinion. Vangerow holds that,
except in Minority and Absence, prescription begins to run from the
date of Laesion, 4 §§ 110-113, comm.
Of the five titles to restitution that we have enumerated, four,
namely, intimidation, fraud, absence, error, implying equality of
rights in all parties, belong to the law of Things or actions ; title by
minority, implying a privileged class or inequality of rights, belongs
to the law of Persons.
As we shall have occasion in the next book, §§ 1-14, comm., to
use the expression Rerum universitas, it may seem appropriate,
before we quit the law of Persons, to give some explanation of the
contrasted term, Personarum universitas. A University of persons
in the private code is a fictitious or juristic person, composed
generally by the union of a number of individuals, and capable like
a natural individual (singularis persona) of the various rights and
duties of property, that is to say, of potestas, patronatus, dominium,
I. §§ 197-200.] PERSON ARVM VNIVERSITAS 119
servitus, obligatio ; and the power of suing and being sued (cf.
Sohm, §§ 37, 38).
Some Universities have a visible existence or representation in
a number of individual members, and are then called Corporations.
An essential incident of Corporations is that their rights are not
vested in the aggregate of individuals, but in the ideal whole, regarded
as distinct from the members of which it is composed. Examples of
such Corporations are municipalities (civitas, municipium, respublica,
communitas), colleges of priests, of Vestal Virgins, corporations of
subordinate officials, e. g. lictors, notaries (scribae, decuriae), industrial
guilds, e. g. smiths, bakers, potters, shipowners, mining companies
(aurifodinarum, argentifodinarum, salinarum, societas), contractors
for the revenue (vectigalium publicorum societas), social clubs (soda-
litates, sodalitia), friendly societies (tenuiorum collegia) (cf. Mommsen,
de Collegiis et sodaliciis Komanorum ; Karlowa, Eom. Eechtsg. 2 § 2).
Other juristic persons, not so visibly embodied in any natural
individuals, e. g. temples, churches, hospitals, almshouses, or any
other beneficent aims personified, are called by civilians, not Cor-
porations, but Foundations.
The state, though not strictly speaking a juristic person, as invested
with rights of property, was called in the time of the republic
Aerarium. Under the first emperors, when the public treasure
was divided between the emperor and the senate, the senate, as
in a proprietary position representing the republic, was called
Aerarium, while the treasury of the emperor was called Fiscus. At
an uncertain date, but after the time of M. Aurelius, when all power
was undisguisedly absorbed by the emperor, and the public chests
were united, the terms Aerarium and Fiscus lost their distinctive
meanings, and we find them used convertibly in the compilations
of Justinian. The Fiscus, as a proprietary unit, came to have a
special legal status and to be invested with peculiar privileges.
Juristic persons, though invested with rights of property, being
mere fictions or ideal unities, are, strictly speaking, incapable of
making a declaration of intention ; for how can a fiction have an
intention? It is true that slaves could acquire property and active
obligations for their proprietors ; but a slave could not aliene pro-
perty, nor be himself subject to a civil obligation, nor be a party to
a suit : and therefore Universities could not make such dispositions
by means of their slaves. In this respect they resemble infants and
lunatics ; and as infants and lunatics must be represented by their
guardians and curators, so juristic persons must be represented by
the agents designated and defined by their constitution. The tem-
porary representative of a Corporation, for the purpose of suing and
being sued, was called Actor ; a permanent representative for this
120 DE PERSONIS [r. §§ 197-200.
purpose was called Syndicus, Gaius in Dig. 3, 4, 1. The consti-
tutions of juristic persons are too various to admit of any general
definition. But a juristic person was only bound by the act of its
representative, in so far as such juristic person was benefited thereby.
Dig. 12, 1, 27.
Although a Universitas is said to hold common property, the
relation of the members of a Universitas must not be identified with
that of Co-proprietors (communio). A co-proprietor is the separate
proprietor of an undivided ideal portion, which he can aliene, mort-
gage, and otherwise dispose of ; and which, by requiring a partition
(actio communi dividundo), he can always reduce to a real portion :
whereas the whole of the common property can only be dealt with
if the co-proprietors are unanimous. Members of a Universitas,
on the contrary, cannot demand a partition ; and dispositions of
the property of the Universitas can only be made by the vote
of a majority, sometimes only by a majority of two-thirds of the
members.
Every juristic person was originally incapable of being instituted
heir, as Pliny mentions in the case of municipalities : Nee heredem
institui nee praecipere posse rempublicam constat, Epist. 5, 7.
' Neither an inheritance nor a legacy by praeceptio (which implies
that the legatee is also heir, 2 § 217) can be left to a municipality.'
Juristic persons were not, as is sometimes stated by Koman jurists,
subject to this incapacity simply because, owing to the idea of
an artificial person not having yet been distinctly formed, they
were regarded as personae incertae, 2 § 238, but also because, being
fictions, they were incapable of entering on an inheritance (aditio),
which involves acceptance on the part of the heir, and excludes
representation. First the senate, disregarding this difficulty, allowed
municipalities to be instituted heirs by their own liberti, Ulpian 22, 5:
and subsequently the Emperor Leo, A. D. 469, gave to municipalities
the capacity of being instituted heir by any testator, Cod. 6, 24, 12.
No general enactment extended this capacity to all Corporations, but
some received it as a special privilege.
Originally municipalities, like other juristic persons, were in-
capable of taking bequests (legata), but subsequently they were
declared capable by Nerva and Hadrian, Ulpian 24, 28; 2 § 195:
and this capacity was extended to Collegia, Templa and Churches,
Dig. 34, 5, 20. Towns were also capable of taking successions by
fideicommissum, Ulpian 22, 5.
Under Christian legislation Pious Foundations (pia corpora) were
made capable of taking hereditas and legatum: and testamentary
dispositions of hereditas and legatum, that would otherwise have
been void by the rule avoiding devises to incerta persona, e. g. a devise
I. §§ 197-200.] PERSONARVM VNIVERSITAS 121
to the poor of a town who, not forming a corporation, were not
persona certa, acquired validity from the pious purpose of the dis-
position.
The origin and extinction of Universitates, Collegia, &c. required
the assent of the Emperor. The special privileges and incapacities
which we have indicated, by their analogy to status, may perhaps
justify the mention of Universities in the law of Persons. Savigny,
§§ 85-102.
COMMENTARIVS SECVNDYS
DE BEBVS SINGVLIS ET DE RERVM
UNIVEESITATIBVS
DE EEKVM DIVISIONE.
§' 1. Super lore commentario
de iure personarum \ exposui-
mus ; modo uideamus de rebus ;
quae uel in nostro patrimonio
sunt uel extra nostrum patri-
monium habentur.
Inst. 2, 1 pr.
§ 2. Summa itaque rerum
diuisio in duos articulos didu-
citur : nam aliae sunt diuini
iuris, aliae humani.
§ 3. Diuini iuris sunt ueluti
res saerae et religiosae.
Inst. 2, 1, 7.
§ 4. Sacrae sunt quae diis
superis consecratae sunt ; reli-
giosae quae diisManibusrelictae
sunt. Inst. 2,1,8.
§ 5. Sed sacrum quidem hoc
solum existimatur quod ex
auctoritate populi Roinani con-
secraium est, ueluti lege de ea
re lata aut senatusconsulto
facto. Inst. 1. c.
§ 6. Religio'sum uero nostra
uoluntate facimus mortuum
inferentes in locum nostrum, si
modo eius rnortui funus ad nos
pertineat. Inst. 2, 1, 9.
§ 7. Sed in prouinciali solo
placet plerisque solum religio-
sum non fieri, quia in eo solo
dominium populi Romani est
uel Caesaris, nos autem pos-
sessionem tantum uel usum-
fructum habere uidemur; uti-
que tamen etiamsi non sit reli-
giosum, pro reHgioso habetur.
§ 1. In the preceding book the
law of persons was expounded ;
now let us proceed to the law of
things, which are either subject
to private dominion or not subject
to private dominion.
§ 2. The leading division of
things is into two classes : things
subjects of divine, and things
subjects of human right.
§ 3. Subjects of divine right
are things sacred and things reli-
gious.
§ 4. Sacred things are those
consecrated to the gods above ;
religious, those devoted to the
gods below.
§ 5. Sacred things can only be-
come so with the authority of the
people of Rome, by consecration
in pursuance of a law or a decree
of the senate.
§ 6. A religious thing becomes
so by private will, when an in-
dividual buries a dead body in his
own ground, provided the burial
is his proper business.
§ 7. On provincial soil, accord-
ing to most authorities, ground
does not become religious as the
dominion belongs to the people of
Rome or the Emperor, and in-
dividuals only have possession or
usufruct, but such places, though
not properly religious, are to be
regarded as quasi-religious.
IT. §§ 1-14] DE RERVM DIVISIONS
123
§ 7 a. Item quod in pro-
uinciis nonex auctoritatepopuli
Roman! consecratum est, pro-
prie sacrum non est, tamen pro
sacro habetur.
§ 8. Sanctae quoque res,
uelut mini et portae, quodam-
modo diuini iuris sunt*
Inst. 2, 1,10.
§ 9. Quod autem diuini
iuris est, id nullius in bonis
est ; id uero, quod humani iuris
est, plerutnque alicuius in
bonis est : potent autem et nul-
lius in bonis esse; nam res
hereditariae, antequam aliquis
heres existat, nullius in bonis
sunt. Inst. 1. c.
§96.
(8 fere uersus in C legi ne-
queunt)
1 *e domino.
§ 10. Hae autem quae hu-
mani iuris sunt, aut publicae
sunt aut priuatae.
§ 11. Quae publicae sunt,
nullius mdentur in bonis esse ;
ipsius enim uniuersitatis esse
creduntur. priuatae sunt quae
singulorum hominum sunt.
§ 7 a. Just as provincial soil, in
default of the authorization of the
people of Rome, is rendered by
consecration not sacred, but quasi-
sacred.
§ 8. Sanctioned places are to a
certain extent under divine domi-
nion, such as city gates and city
walls.
§ 9. Things subject to divine
dominion are exempt from private
dominion; things subject to hu-
man dominion are generally sub-
ject to private dominion, but may
be otherwise: for things belonging
to an inheritance before any one
has become heir have no actual
owner.
§ 10. Things subject to human
dominion are either public or pri-
vate.
§ 11. Things public belong to
no individual, but to a society or
corporation ; things private are
subject to individual dominion.
DE KEBVS INCOBPORALIBVS.
§ 12. Quaedam praeterea res
corporales sunt, quaedam in-
{corporales}. Inst. 2, 2 pr.
§ 13. Corporales hae {sunt}
quae tangi possunt, uelut fun-
dus homo uestis aurum argen-
tum et denique aliae res \nnu-
merabiles. Inst. 1. c.
§ 14. Incorporates sunt quae
tangi non possunt, qualia sunt
ea quae iure consistunt, sicut
hereditas ususfructus obliga-
tiones quoquo modo contractae.
nee ad rem per(tinet, quod in
hereditate res corporales con-~)
§ 12. Again, things are either
corporeal or incorporeal.
§ 13. Things corporeal are tan
gible, as land, a slave, clothing,
gold, silver, and innumerable
others.
§ 14. Things incorporeal are
intangible ; such as those which
have an existence simply in law as
inheritance, usufruct, obligation,
however contracted. For though
an inheritance comprises things
corporeal, and the fruits of land
124
DE REBVS SINGVLIS
[n. §§1-14.
tinentur et fructus qui ex fundo
percipiuntur corporales suni,
et quod ex aliqua obligation e
nobis debetur, id plerumque
corporal est, uduti fundus
homo pecunia ; nam ipsum ius
successionis et ipsum ius utendi
fruendi et ipsum ius obliga-
tionis incorporate est. eodem
numero sunt iura praediorum
urbajnorum et rusticorum.
j altius tollendi 1
luminibus uicini aed non
extollen|di, ne luminibus uicini
officiatur. | item fluminum et
stilicidiorum ius, ut — |
in aream — ] 1
ius aquae ducendae — j
Inst. 2, 2, 2 and 3.
•enjoyed by a usufructuary are cor-
poreal, and obligations generally
bind us to make over the convey-
ance of some thing corporeal: land,
slaves, money; yet the right of
succession, the right of usufruct,
and the right of obligation are
incorporeal. So are the rights
attached to property in houses and
land. The following are rights
attached to property in houses ;
the right of raising a building
and thereby obstructing the lights
of a neighbouring building ; the
right of prohibiting a building
being raised, so that one's lights
may not be interfered with ; the
right of letting rain-water fall in
a body or in drops on a neigh-
bour's roof or area ; the right of
having a sewer through a neigh-
bour's area, or a window in a
neighbour's wall (cf. Epit. 2, 1, 3).
The following are rights attached
to property in land : iter, a right of
way on foot or horseback ; actus,
a right of way for ordinary car-
riages ; via, a right of paved way
for heavy-laden wagons ; pecoris
ad aquam appulsus, a right of
watering cattle ; aquae ductus, a
right of conveying water through
the tenement of another.
Having treated of the law of Persons (unequal rights), we proceed
to the law of Things (equal rights), and the first right which Gaius
intends to discuss is the right called Dominion. Seduced, however,
by an ambiguity of the word Kes, which signifies either a right or
the subject of a right, his opening statements (§§ 12-14) are
deplorably confused.
In order to see our way, let us first examine Kes as denoting the
Object of a right. Every right implies, as we have stated, a duty ;
and eveiy right or duty implies at least two persons, one of whom is
entitled to the right while the other is liable to the duty. The imme-
diate OBJECT of every right is an act or forbearance of the person
who is liable to the duty. But the act or forbearance generally
relates to some body, that is, to some tangible portion of the
external world, whether a thing or a person. This body, accord-
ingly, may be called the mediate, indirect, or secondary Object of
ii. §§ 1-14.] DE RERVM DIVISIONS 125
the right. The secondary object of a right, however, is not always
a body ; it may be corporeal or incorporeal. For instance, dominium
over land is a right to forbearance on the part of all the world from
molestation of the owner in dealing with the land. A servitude,
say a right of way, is a right to forbearance on the part of all the
world from molestation of the person entitled when he passes over
certain land. A contractual right is a right to a positive act or forbear-
ance on the part of a determinate person, say, to the conveyance or
delivery of a certain piece of land. In these cases, land, the secondary
object of the right, is something corporeal. So, too, when a
person is the object of a right ; for instance, a child or a gladiator,
3 § 199, in the possession (detention or custody) of the parent or
employer, and whose removal from such possession engenders in the
removing party an obligation ex delicto. But in primordial rights,
the object, at least as distinguished from the two parties in whom
the right and duty respectively vest, is something incorporeal.
A man has a right to forbearance on the part of all the world from
molestation in his life, health, locomotion, honour. These objects
of the right are incorporeal. Other rights, apparently, have no
determinate object, corporeal or incorporeal, to which they are
correlated. In a right to the services of a menial or gladiator,
for instance, it would be hard to indicate any secondary or corporeal
object to which the obligation of the menial or gladiator relates.
It is clear that no division of Objects of right will coincide with
a classification of Eights: while, if we divide Ees in the meta-
physical sense of the World, or Being, or Existence (a sense sug-
gested by the differentiae, corporalis, and incorporalis), Dominium,
like all other rights, will be a member of the branch res incorporales,
or Ownership. Gaius, however, wishes us to identify Dominium
with res corporalis, and to make Obligation and the fractions of
Dominium (servitutes), and even some forms of Dominium (e. g.
hereditas), members of the contra-distinguished branch, res incor-
poralis. (Of. 3 § 83, omnes ejus res incorporales et corporales quaeque
ei debita sunt.)
Gaius was probably not entirely responsible for this confusion of
thought, which, perhaps, was too deeply inwoven in the formulae
of Eoman jurisprudence to be easily eliminated by an institutional
writer. E. g. the declaration (intentio) of a real action (in rem
actio) was of the form : Si paret (i) ilium fundum — (2) illam
hereditatem — actoris esse. (Cf. 4 § 3 In rem actio est cum aut
corporalem rem intendimus nostram esse aut jus aliquod nobis
competere.) Now as hereditas is a jus successionis, § 14, it is clear
that, if the second formula is correct, the first formula ought to be,
not, Si paret ilium fundum — but, Si paret illius fundi dominium —
126 DE REBVS SINGVLIS [n. §§ 1-14.
actoris esse. To meet this and similar inaccuracies of the framers
of the formularies, Gaius is misled into identifying in res corporalis
two things completely disparate, Right and the corporeal thing or
Secondary Object of a right. There is a similar confusion in English
law, chattels, tenements, and hereditaments being sometimes used to
denote the objects, movable or immovable, of certain rights, some-
times the rights over those objects : and just as Res is divided into
Corporalis and Incorporalis, so Hereditaments are divided into
Corporeal and Incorporeal ; although, if the term denotes a right,
both branches are equally incorporeal : if it denotes the secondary
object of a right, both branches are equally corporeal.
We shall find hereafter, 4 §§ 138-170, comm., that the position of
POSSESSION in Roman jurisprudence — whether it belongs to the
department of jus IN REM or of OBLIGATIO EX DELICTO — is a moot
question ; but at present we n«ed do no more than notice the
existence of the controversy. We need also only to indicate a
division of rights and duties into SINGLE rights and duties, and
AGGREGATES of rights and duties (UNIVERSITAS JURIS), such as
Hereditas. A UNIVERSITAS JURIS includes Obligations as well as
Rights, Jus in personam as well as Jus in rem, being in fact the
succession of One person to which another person succeeds. But in
spite of the diverse character of the elements of which it is composed,
the JURIS UNIVERSITAS itself, or the ideal whole of these various
elements, is regarded, «. g. in Hereditatis petitio, as a real Right, not
an Obligation ; as a Jus in rem, not a Jus in personam.
As Graius thought that he could obtain the idea of Dominium by
a division of Res into corporales and incorporales, so he seems to
have thought that he could distinguish private dominium, the special
department which he intends to examine, from other forms of do-
minium by a further division of Res. The phrases res divinae, res
humanae, res communes, res publicae, res privatae, do indeed sug-
gest the notion that res privatae is a specific member of the genus
Res ; but the appearance is fallacious. Very little reflection will
convince us that res divinae, res publicae, res privatae are not
a division of the OBJECTS of property (res) ; for the same thing, a
piece of ground, for instance, may be an object of divine or public
or private dominion ; but merely a division of proprietors. In res
divinae, the only doubtful case, the gods were deemed to be pro-
prietors. Sed et ilia interdicta quae de locis sacris et de religiosis
proponuntur veluti proprietatis causam continent, Dig. 43, 1, 2, 2.
' The interdicts respecting sacred and religious places protect a
quasi-pr operty . '
The division of the objects of right by their physical differences,
the only way in which they can be divided, though only of subor-
ii. §§ 1-14.] DE KERVM DIVISIONS 127
dinate importance, and though it cannot furnish the distinctions of
Dominium and Obligation, nor of Public and Private dominium, yet
has a considerable influence on jurisprudence, and demands a certain
amount of attention. Thus ocean, air, and light, as opposed to the
earth, are by their nature essentially res communes. Being in-
capable of appropriation, they have not been appropriated and are
held in communism. Again, in wild animals, as opposed to tame,
property is only coextensive with possession. On the difference
between specific and generic things, or things consumed by use,
quae pondere numero mensurave constant, and things not consumed
by use, is founded the distinction between the contracts of mutuum
and commodatum. Cf. 3 § 9(X On the same difference of specific
and generic things are founded different rules relating to the con-
tract of sale, 3 §§ 139-141, comm. ; and the distinction of movables
and immovables founds important differences in Eoman and other
systems of law.
The phrases in nostro patrimonio and extra nostrum patrimonium,
§ 1, are apparently equivalent to alicujus in bonis and nullius in
bonis, § 9, and to the expressions we meet elsewhere, in commercio
and extra commercium.
Of res communes, or things such as air and running water, which
sometimes come under discussion (cf. Inst. 2, 1, 1 Et quidem
naturali jure communia sunt omnium haec: aer et aqua profluens
et mare et per hoc litora maris) but are not mentioned by Gaius,
we may observe, that they only fall within the province of positive
law, as belonging to the jurisdiction of each particular state.
All the things within the territory of a given state are subject to
its dominion (dominium eminens), that is, are res publicae in a
general sense of the term. Of these things it allows the dominium
over some to vest in private individuals for their own advantage,
while it retains the dominium over others in itself as if it were a
corporation or collective person (personarum universitas). This
gives us a division of all things into res privatae and res publicae
in a narrower sense of the term. We must note, however, that the
dominium of the state is not exactly similar to private dominium,
that is to say, is not dominium ir the proper sense or the sense in
which the word is used in civil law. For the civil dominium. of
private persons is a right protected and sanctioned by a political
superior, whereas a sovereign state is by hypothesis in subjection
to no superior. A state, then, can only be said to have dominium
in a modified sense of the word, that is, so far as it is not restrained
by any positive law of any superior from using and dealing with
certain things as it may please.
Of things which are objects of public dominion, some are vested
128 DE REBVS SINGVLIS [n.§§l-14.
immediately in the state, others in subordinate persons, single or
corporate, magistrates, for instance, and municipalities, to be held
by such persons for various public purposes. Among these we
might also reckon res divini juris, though as dedicated to religious
purposes, such things were regarded by the Eomans as no man's
property, §§ 3-6.
Another division of res publicae is into res in patrimonio populi
and res non in patrimonio populi. Under the former are included
the public treasury, the public domain, public slaves, bequests
lapsing to the state (caduca) or res privatae otherwise devolving on
the state ; in other words, all things of which the state as universitas
retains not only the property but also the use and disposition (res
enim fiscales quasi propriae et privatae principis sunt, Dig. 43, 8,
2, 4). The other class includes high roads, public rivers, public
buildings, &c., that is, all things of which the property is in the
community and the use in the members of the community. Or
we may say that the property is in the universitas, but it is subject
to a personal servitude (usus) vested in all the private members of
that universitas (singuli, universi).
Not only res publicae but res privatae may be thus subject. For
instance, the banks of public rivers and the trees thereupon are the
property of the adjacent proprietors ; but the navigators of these
rivers have the right of mooring, landing, unlading, and using the
banks in various other ways, Inst. 2, 1, 4.
Ownership (dominium) absolute or pre-eminently so called, may
be denned as a right of unlimited duration, imparting to the owner
a power of indefinite enjoyment or use, and a power of aliening from
all who in default of alienation by him might succeed by descent ;
or, in other words, from all successors interposed between himself
and the sovereign as ultimus heres. It is accordingly sometimes
said to consist of jus utendi, fruendi, abutendi ; where abusus includes
the power of consumption or destruction, of dereliction, and of
disposition (sale, exchange, gift, mortgage, lease, &c.). Another
element is equally important, the right of exclusion (jus prohi-
bendi). Another is the jus transmittendi, i. e. the right of leaving
the integral right, in the absence of Disposition, to those whom he
would presumably have wished to be his successors.
Besides ownership (dominium) Eoman law recognizes various
kinds of partial property, real rights over an object of which the
dominium is in another person, called jura in re or jura in re
aliena, rights which fall short of absolute property but approxi-
mate to it in various degrees. Such rights, which are limitations
of ownership, are servitudes, § 14, mortgage (pignus), super-
ficies, and emphyteusis. These may all be regarded as detached
II. §§ 1-14.] SERVITUDE 129
fractions of ownership, portions of the right of dominion taken from
the proprietor and vested in another person. Servitudes are explained
by Justinian in the parallel passage of his Institutes (2, 3-5), and,
together with the other jura in re aliena, demand here a brief notice.
Servitudes are (i) praedial or real (praediorum), that is, belong to
a person as owner of a certain house or land (praedium dominans)
in respect of a house or land belonging to another proprietor (prae-
dium serviens), or (2) personal (personarum), that is, are vested in
a person without relation to his ownership of praedium dominans,
and being thus inseparably attached to him they are inalienable and
determine at his death. (Compare in English law the division of ease-
ments into easements appurtenant to land and easements in gross.)
Praedial servitudes are servitudes in the strictest sense, being con-
trasted with ownership by their precise and definite circumscription.
Ownership (dominium) is a right against the world which gives to
the party in whom it resides a power of dealing with the subject
which is not capable of exact definition. Servitude is such a right
against the world as gives to the party in whom it resides a power
of using the subject which is susceptible of precise description. It is
a definite subtraction from the indefinite powers of use and exclusion
which reside in the owner ; or a right against the owner and the rest
of the world to make certain use of a thing or prohibit certain uses.
Praedial servitudes are (i) rustic, relating to land, or (2) urban,
relating to houses. Urban servitudes are further subdivided into
Positive or Affirmative and Privative or Negative. The following
considerations will show the meaning of this division and its origin
in the nature of Property.
Servitudes are limitations of, or deductions from, another person's
ownership or dominium. Dominium contains, among other elements,
(A) certain powers of action (jus utendi), and (B) certain powers of
exclusion (jus prohibendi). Kestrictions on these powers will be
(a) a certain necessitas non utendi, and (6) a certain necessitas
patiendi. Correlative to these duties on the part of the owner
of the servient tenement will be certain rights of the owner of the
dominant tenement, viz. (a) a certain jus prohibendi, and (/3) a
certain jus utendi, or in other words, (a) a certain negative servitude,
and (#) a certain affirmative servitude. As it happens that all the
servitudes which public policy has recognized in relation to land
are of an Affirmative character (except Si concedas mini jus tibi
non esse in fundo tuo aquam quaerere, minuendae aquae meae gratia,
Dig. 8, 1, 15 pr. though, as Windscheid remarks, there is no reason
why this should not also be an urban servitude — ) and relate to some
transient action (except Ut tugurium mihi habere liceret in tuo,
scilicet si habeam pascui servitutem aut pecoris appellendi, ut, si
130 DE ADQVIRENDO RERVM DOMINIO [n.§§l-14.
hiems ingruerit, habeam quo me recipiam, Dig. 8, 3, 6, 1), they may
be called jus faciendi : while those relating to houses are both Affirma-
tive and Negative (jus prohibendi). Affirmative Urban servitudes,
implying some permanent structure, may, in conformity with classical
usage (e. g. jus tignum immissum habendi) for the sake of distinction
from the Rural servitudes, be called jus habendi : they resemble them
in the generic character that they are each a jus utendi.
(1) Instances of Rural servitude (jus faciendi) are iter, or jus eundi,
right of way for beast and man on foot or on horseback over the
servient tenement to the dominant tenement ; actus or jus agendi,
right of way for ordinary carriages (not for heavy-laden wagons) ;
via (or jus vehendi ?), right of paved way for heavy-laden wagons ;
aquae haustus, the right of drawing water from a private spring ;
aquae ductus, the right of conveying water over the servient tene-
ment ; pecoris ad aquam appulsus, the right of watering cattle ; jus
pecoris pascendi, the right of pasturing cattle ; jus calcis coquendae,
the right of burning lime ; jus cretae eximendae, the right of quarry-
ing for chalk ; jus arenae fodiendae, the right of taking sand ; jus
silvae caeduae, the right of cutting wood in a wood suitable for the
purpose.
(2) Instances of affirmative urban servitudes are jus tigni im-
mittendi, the right of inserting a beam in a neighbour's wall ; jus
oneris ferendi, the right of resting a weight on a neighbour's wall or
column (this servitude involves on the part of the servient owner the
positive obligation of repairing the servient wall (refectio) ; whereas
all other servitudes, as real rights, are contradistinguished from obliga-
tions or personal rights, by corresponding to the merely negative
duty of abstention ; cf. Windscheid, Pandekten, 1 § 2 1 1 a, note 3) ;
jus protegendi, the right of projecting a roof over the soil of a neigh-
bour ; jus stillicidii recipiendi or avertendi or immittendi, the right
of directing the rainfall on to a neighbour's roof or area ; jus cloacae
immittendae, the right of making a sewer through the area of a neigh-
bour; servitus luminum or jus luminis immittendi, the right of having
a window in a neighbour's wall ; jus officiendi luminibus vicini,
the reacquired right of an owner to diminish the light of a neighbour ;
jus altius tollendi, the reacquired right of an owner to increase the
height of a structure, § 31 ; the right of storing fruit in his villa, ut
fructus in vicini villa cogantur coactique habeantur ; of placing quar-
ried stones on his land, posse te cedere jus ei esse terram, rudus, saxa,
jacere posita habere, et ut in tuum lapides provolvantur ibique positi
habeantur, Dig. 8, 3, 3, 1 and 2. Vangerow holds that Aquaeductus,
implying jus habendi, though it is servitus Rustica as to the land
from which water is taken, is servitus Urbana as to the land over
which water is conveyed.
II. §§1-14.] SERVITUDE 131
(3) Instances of jus prohibendi are jus altius non tollendi, the
right of forbidding a neighbour to raise the height of his buildings ;
jus ne prospectui officiatur, the right of having a prospect uninter-
cepted ; jus ne luminibus officiatur, the right of having the access of
light to one's windows obstructed ; jus stillicidii non avertendi, the
reacquired right of prohibiting my neighbour from discharging his
rainfall into my area. Inst. 2, 3.
Personal servitudes (Inst. 2, 4 and 5) are rights of a less limited
character in respect of user, but more restricted as to duration than
praedial : instances are Habitatio, the right of occupying a house ;
Usus, the right of using a thing and consuming its immediate fruits
or products, without the right x>f letting the thing or selling its pro-
ducts ; of acquiring, in other words, its rent and profits, which may
be regarded as its mediate or secondary fruits. Fructus, usually called
Ususfructus, the further right of leasing the thing and selling its
fruits. Habitatio, Usus, Ususfructus were usually, though not in-
variably, life interests, and, unlike real servitudes, implied Detention
of the object ; Possession of it, as opposed to Detention (4 §§ 138-170,
comm.), remaining in the proprietor. For the modes of creating and
vindicating servitudes, see §§ 28-33 ; 4 § 88, comm. Servitus was the
only jus in re aliena belonging to jus civile. The other jura in re aliena,
subsequently instituted, were pignus, superficies and emphyteusis.
Pignus or hypotheca, as developed by praetorian law, was the right
of a creditor in a thing belonging to his debtor, maintainable against
any one, in order to secure satisfaction of his debt. The praetorian
action, by which the creditor could claim possession of the thing
pledged, corresponding to the vindicatio of the owner, is called actio
quasi Serviana in *em or hypothecaria. See 3 §§ 90, 91, comm.
Superficies is the right of a person who, having rented land for
building on a long or perpetual lease, has built a house on it, which
according to jus gentium, by the rule of Accession, is the property
of the proprietor of the soil ; cf. Inst. 2, 1, 29. The Praetor, how-
ever, recognized in the superficiarius a jus in re which he protected
by an interdict de superficie and ? ~ actio in rem utilis.
Jus in agYo vectigali or emphyteusis, as this species of right came
to be called subsequently to the time of Gaius, from waste lands of
the Emperor being let out under this kind of tenancy to be planted
or cultivated, was a perpetual lease which transferred to the tenant
or emphyteuta most of the rights of the owner. Accordingly he
could maintain actio vectigalis in rem against any one to recover
possession of the land thus leased to him. See 3 § 145. Although
emphyteusis might be of unlimited duration, and was alienable with-
out the consent of the owner, subject to his right of pre-emption,
yet the owner had a right of recovering the land for breach of con-
K -2,
132 DE ADQVIRENDO RERVM DOMINIO [n. §§ 14 o-27.
dition, or failing heirs of the emphyteuta, much as the feudal lord
of a fee could recover the fief on forfeiture or escheat of the tenant,
emphyteusis being even regarded by some as the model on which
feudaj tenure was instituted. This forfeiture or escheat to the lord
of the fee makes property in land theoretically imperfect, like
emphyteusis, falling short of ownership. Property in chattels, on the
contrary, is not held of a superior, and, therefore, is absolute.
The Profits and Easements of English law generally correspond to
the Servitutes of Roman law. But the principle : Servitutium non
ea natura est ut aliquid faciat quis, sed ut aliquid patiatur aut non
faciat, Dig. 8, 1, 15, 1 : ' Servitudes are not a right to a performance
but to a permission or forbearance : ' would exclude from the class of
Servitudes some members of the class of Profits ; e. g. Rents, which
are said to lie in render, i. e. to involve a performance of the party
burdened, not in prender, i. e. not to consist in an act of the party
entitled. Roman law adhered strictly to the principle that Real
rights, or rights against the world, can only correlate to negative
duties, duties of forbearance ; and that rights correlating to positive
obligations, or duties of performance, can only be Personal ; i. e. can
only regard a particular individual and his universal successors.
§§ 14a-27. Having described the various kinds of real right (jus
in rem), i. e. dominium and its fractions (jura in re), we proceed to the
TITLES of real rights, that is to say, the events to which these rights
are annexed by the law ; in other words, the modes prescribed by the
law by which such rights may be acquired ; in other words, the legal
definitions of the classes of persons in whom such rights are declared
to be vested.
The Titles of real rights are divisible into Titles by which single
real rights are acquired and Titles by which aggregates of rights
(universitates jurum) are acquired.
Titles by which single real rights are acquired are divisible into
Titles sanctioned by the civil law (jus civile) and Titles sanctioned by
natural law (jus gentium, jus naturale), natural law denoting the rules
of Roman law introduced by praetors, jurists and statutes, as con-
sonant to the general reason of mankind.
Titles to ownership by civil law are mancipatio, in jure cessio,
usucapio, and others which will be mentioned. Titles by natural law
are traditio, occupatio, accessio, and others which will be mentioned,
§ 35. We commence with Titles by civil law.
RERVM CORPORALTVM ADQVISITIONES CIVILES.
§ 14 a. aut mancipi §14a. Things are further divided
sunt aut nee mancipi. | Man- into mancipable and not manci-
cipi sunt 1 item aedes in pable ; mancipable are land and
IT. §§ 14 o-27.] RERVM C. ADQVISITIONES CIVILES 133
Italico solo 1 1
serui\tutes praediorum urbano-
rum nee mancipi sunt. \
1§120; Ulp.19,1.
§ 15. Item stipendiaria prae-
dia et tributaria nee mancipi |
sunt. sed quod diximus 1
mancipi esse 1 statim ut
nata sunt mancipi esse putan£ ;
Nerua uero et Proculus et
ceteri diuersae scholae auctores
non aliter ea mancipi esse
putant, quam si domita sunt ;
et si propter Tiimiam feritatem
domari non possunt, tune uideri
mancipi esse incipere, cum ad
earn aetatem peruenerit, qua
domari solent.
§ 16. Item ferae bestiae nee
mancipi sunt uelut ursi leones,
item ea animalia quae fere
bestiarum numero sunt, ueluti
elephanti et cameli ; et ideo ad
rem non pertinet, quod haec
animalia etiam collo dorsoue
domari solent ; nam ne nonien
quidem eorum animalium illo
tempore (notum} fuit, quo con-
stituebatur quasdam res man-
cipi esse, quasdam nee mancipi.
§ 17. Item fere omnia quae
incorporalia sunt nee mancipi
sunt, exceptis seruitutibus
praediorum rusticorum ; nam
eas mancipi esse constat, quam-
uis sint ex numero rerum in-
corporalium.
§ 18. Magna autem dif-
ferentia est inter mancipi res
et nee mancipi.
§ 19. Nam res nee mancipi
ipsa traditione pleno iure
alterius fiunt, si modo cor-
porales sunt et ob id recipiunt
traditionem.
houses in Italy ; tame animals
employed fordraught and carriage,
as oxen, horses, mules, and asses ;
rustic servitudes over Italian soil ;
but urban servitudes are not
mancipable.
§ 15. Stipendiary and tributary
estates are also not mancipable.
According to my school animals
which are generally tamed are
mancipable as soon as they are
born ; according to Nerva and
Proculus and their followers, such
animals are not mancipable until
tamed, or if too wild to be tamed,
until they attain the age at which
other individuals of the species
are tamed.
§ 16. Things not mancipable
include wild beasts, as bears,
lions ; and semi-wild beasts, as
elephants and camels, notwith-
standing that these animals are
sometimes broken in for draught
or carriage ; for their name was
not even known at the time when
the distinction between res man-
cipi and nee mancipi was estab-
lished.
§ 17. Also things incorporeal,
except rustic servitudes on Italian
soil ; for it is clear that these are
mancipable objects, although be-
longing to the class of incorporeal
things.
§ 18. There is an important
difference between things manci-
pable and things not mancipable.
§ 19. Complete ownership in
things not mancipable is trans-
ferred by merely informal delivery
of possession (tradition), if they
are corporeal and capable of
delivery.
134 DE ADQVIRENDO RERVM DOMINIO [n. §§ 14 a-27.
§ 20. Itaquo si tibi western
uel aurum uel argentum tradi-
dero siue ex uenditionis causa
siue ex donationis siue quauis
alia ex causa, statim tua fit ea
res, si modo ego eius dominus
sim.
§ 21. Jn eadem causa sunt
prouincialia praedia, quorum
alia stipendiaria alia tributaria
uocamus. stipendiaria sunt ea,
quae in his prouinciis sunt,
quae propriae populi Romani
esse intelleguntur ; tributaria
sunt ea, quae in his prouinciis
sunt, quae propriae Caesaris
esse creduntur. Inst. 2, 1, 40.
§ 22. Mancipi uero res sunt,
quae per mancipation em ad
aliurn transferuntu r ; unde etiam
mancipi res sunt dictae. quod
autem ualet (mancipatio, idem
ualet et in iure cessio.
§ 23. Et} mancipatio qui-
dem quemadmodum fiat, supe-
riore commentario tradidimus.
§ 24. In iure cessio autem
hoc modo fit : apud magistra-
tum populi Romani, ueluti
praetorem, is cui res in iure
ceditur rem tenens ita dicit
HVNC EGO HOMINES! EX 1VRE
QVIKITIVM MEVM ESSE AIO ;
deinde postquam hie uindica-
uerit, praetor interrog&t eum
qui cedit, an contra uindicet ;
quo negante aut tacente tune
ei qui uindicauerit, earn rem ad-
dicit ; idque legis actio uoca-
tur. hoc fieri potest etiam in pro-
uinciis apud praesides earum.
§ 25. Plerumque tamen et
fere semper mancipationibus
utimur. quod enim ipsi per
nos praesentibus amicis agere
possumus, hoc non est necesse
cum maiore difficultate apud
§ 20. Thus when possession of
clothes or gold or silver is de-
livered on account of a sale or
gift or any other cause, the pro-
perty passes at once, if the person
who conveys is owner of them.
§ 2 1. Similarly transferable are
estatesinprovincial lands, whether
stipendiary or tributary; stipen-
diary being lands in provinces
subject to the dominion of the
people of Borne ; tributary, lands
in the provinces subject to the
dominion of the Emperor.
§ 22. Mancipable things, on the
contrary, are such as are conveyed
by mancipation, whence their
name ; but surrender before a
magistrate has exactly the same
effect in this respect as mancipa-
tion.
§ 23. The process of mancipa-
tion was described in the preced-
ing book (1 § 119).
§ 24. Conveyance by surrender
before a magistrate (in jure cessio)
is in the following form : in the
presence of some magistrate of the
Roman people, such as a praetor,
the surrenderee grasping the ob-
ject says : I SAY THIS SLAVE is MY
PKOPERTY BY TITLE QuiKITAKY.
Then the praetor interrogates the
surrenderor whether he makes a
counter-vindication, and upon his
disclaimer or silence awards the
thing to the vindicant. This
proceeding is called a statute-
process ; it can even take place in
a province before the president.
§ 25. Generally, however, and
almost always the method of man-
cipation is preferred ; for why
should a result that can be accom-
plished in private with the assist-
ance of our friends be prosecuted
n. §§ 14 a-27.] RERVM C. ADQVISITIONES CIVILES 135
praetorem aut apud praesidem
prouinciae agere.
§ 26. Quodsi neque manci-
pata neque in iure cessa sit res
mancipi
(6 uersus in C legi nequeunt)
|*plena possessio con-
ex formula qua hi
— I 1 fructus
with greater trouble before the
praetor or president of the pro-
vince ?
§ 26. If neither mancipation
nor surrender before the magis-
trate is employed in the convey-
ance of a mancipable thing ....
cessa-
qu —
na —
§ 27. Item adhuc i-
(4 uersus in C legi nequeunt)
jnon fuissent— — -|
(7 uersus in C legi nequeunfy
-s 1 1 estquo
nomine 1 ere uel 1
praedium [dem ulla libera
ciuitas odraonendi sumus
— | esse, prouincialis soli
nexum non e | significa-
tionem solum ItaMcuro. man-
cipi esi.projuinciale nee mancipi
est. aliter enim ueteri lingua
a| mancipa — |.
§§ 14a-23. Mancipable things — things taken by the hand and so
alienable — were at first, probably, the more important accessories of
a farm, that is, slaves and beasts of burden — oxen, horses, mules and
asses (1 § 1 20), land itself in Italy and rural servitudes attaching to
such land being subsequently made mancipable.
These, the objects of principal value to an agricultural community,
became alienable by means of the formal proceeding by bronze and
balance, called mancipation, which Gaius says (1, 119) is an
imaginary sale.
In its origin, however, mancipation appears to have been not an
imaginary, but a genuine sale for valuable consideration. The intro-
duction of coined money by making the weighing of the bronze in
the scales a formality first gave the proceeding an appearance of un-
reality, but in order to maintain its original character, the Twelve
Tables, which were passed at the time when this important monetaiy
change took place, expressly declared that no property should pass by
mancipation, unless the price was actually paid to the mancipating
party or security given him for it (cf. Inst. 2, 1 , 41 Venditae vero et
traditae non aliter emptori adquiruntur, quam si is venditori pretium
solverit vel alio modo ei satisfecerit, veluti expromissore aut pignore
dato : quod cavetur etiam lege duodecim tabularum) — where traditae
136 DE ADQVIRENDO KERVM DOMINIO [n. §§ 14 a-27.
is an evident Tribonianism for mancipatae. But this law was after*
wards evaded by juristic ingenuity, the practice of paying only a
nominal sum — a single sesterce — being held to be a sufficient com-
pliance with it. This made it possible to use mancipation as a mere
conveyancing form. Even in the case of genuine sales, it was found
advantageous only thus to pay a nominal sum in the mancipation
itself and to make the payment of the purchase money something
entirely apart, for by this means the mancipating party in fact escaped
the liability imposed on him by the Twelve Tables of paying, as
warrantor of the title (auctor), double the price to the other party to
the transaction in case of the latter being evicted (cf. Cic. pro Mur.
2, 3, in Caec. 19, 54), and it had the further advantage that the pur-
chaser was enabled to acquire ownership by the mancipation before he
had paid the actual purchase money (cf. Muirhead, Koman Law, § 30 ;
Sohm, pp. 51,61). How, by means of the nuncupation and by collateral
fiduciary agreements, mancipation was adapted to effect various legal
purposes, may be seen in other parts of the text and commentary.
The form of mancipation (1, 119) shows its archaic origin. If, as
has been thought by many modern writers, the witnesses to it
originally represented the five classes of the Eoman people, manci-
pation, at least in its ultimate form, cannot have been earlier than
the Servian constitution, by which this division of the people was
made. The advantage of requiring the presence of a number of
citizens to bear testimony to important transfers of property in an
age when writing was not in common use is apparent.
§§ 24-26. In jure cessio — the other mode of transfer peculiar to
Jus Civile, and so likewise confined to Eoman citizens, is an adapta-
tion of the legis actio per vindicationem to conveyancing purposes,
depending for its operation on the collusive admission by the
defendant of the supposed plaintiff's claim (confessus pro judicato
est). This fictitious process, which is not so primitive in character
as mancipation, though it was also recognized by the law of the
Twelve Tables, must have been introduced to circumvent the law
in order to effect objects unattainable by direct means, such as the
manumission of slaves. Though Quiritary ownership could be thus
conveyed, it was, for the reason given in § 25, rarely employed for
this purpose. But for creating or transferring some kinds of rights
surrender before a magistrate was essential, §§ 30, 34.
In jure cessio or surrender before a magistrate cannot fail to
recall to an English lawyer two similar modes of alienation that
recently existed in English jurisprudence, alienation by Fine and
alienation by Kecovery, both of which, like in jure cessio, were
based on a fictitious action ; in both of which, that is to say,
although the parties did not really stand in the relation of adverse
IT. §§ 14 o-27.] KERVM C. ADQVISITIONES CIVILES 137
litigants, the alienee was supposed to recover an estate by process of
law. By a Fine, an action commenced against the alienor and at
once terminated by his acknowledging the right of the alienee, a
tenant in tail could aliene the fee simple, so far at least as to bar
his own issue. By a Recovery, a tenant in tail could convey an
absolute estate in fee. This was an action supposed to be, not like
a Fine immediately compromised, but carried on through every
regular stage to the conclusion ; whereby the alienee recovered
judgement against the alienor, who in his turn recovered judgement
against an imaginary warrantor whom he vouched to warranty (cf.
laudat auctorem, 3 § 141, comm.).
Res nee mancipi, that is all objects of individual ownership, other
than res mancipi, were the only things allowed to pass in complete
ownership (pleno jure) simply by tradition, § 19.
This informal mode of alienation did not, like mancipatio, in jure
cessio, and usucapio, belong to Jus Civile, but to Jus Gentium, § 65 ;
and was of later introduction than these.
The tradition or informal delivery of some res nee mancipi must,
however, have been common from the earliest times, though such
tradition would have been regarded at first merely as a delivery of
possession, to be protected by the law of theft, not as a title of
ownership, to be asserted by vindicatio. At a later period, however,
in order to facilitate commerce, tradition became by the influence of
jus gentium a mode of acquiring ownership in things which did not
belong to the privileged class of res mancipi. By tradition, which is
a transfer of possession, ownership may be also transferred, if the trans-
feror is himself owner; otherwise conformably to the principle 'Nemo
plus juris transferre potest, quam ipse habet ' — possession only passes,
bona fide possession, if the transferee knows nothing of his defective
title, mala fide, if he is aware of it. If we consider Surrender before
a Magistrate, Mancipation, Tradition, we shall see that they are
only three forms of one identical title, Alienation. The substance
or essence of the title, the intention on the one side to transfer
property, on the other to accept ;.t, is the same in all three ; it is
only the adventitious, or accidental, or evidentiary portion of the
title in which they differ.
Although delivery of possession, like the solemnities of manci-
pation and surrender, is, as compared with the will or intention of
the parties, only an evidentiary and declaratory part of the title ;
yet both parcels, delivery of possession, as well as agreement, are
indispensable in the transfer of ownership. ' Traditionibus et usu-
capionibus dominia rerum, non nudis pactis transferuntur,' Cod.
2, 3, 20. ' Tradition and usucapion, not bare agreement, operate as
a transfer of ownership.' Tradition, which is only applicable to
138 DE ADQVIRENDO RERVM DOMINIO [n. §§14a-27.
corporeal things, is usually effected by some physical act of appro-
priation, but it may take place without any such actual delivery
being made at the time. This occurs when a vendor agrees to hold
the property he sells on account of, or as agent of, the purchaser
(constitutum possessorium), or when a person already holding a thing
on account of the vendor, e. g. as a deposit, or loan, agrees to purchase
it (traditio brevi manu). (Inst. 2, 1, 44.)
We have spoken of tradition as a title whereby ownership was
acquired. Tradition, however, was only an element, usually the
final element, of the complex mode of acquisition, to which it gives
its name. To be capable of passing property, delivery must be
accompanied by another element, usually an antecedent element,
some contract of sale or other legal ground, which is evidence of an
intention to aliene. ' Nunquam nuda traditio transfert dominium,
sed ita si venditio vel aliqua justa causa praecesserit, propter quam
traditio sequeretur,' Dig. 41, 1, 31 pr. It is clear that bare
delivery, or transfer of physical control, without any further ele-
ment of Title, cannot pass Dominium, for in Loan for Use (commo-
datum) such transfer merely passes what may be called Detention
without Possession ; in Pledge (pignus) it passes what may be called
derivative Possession ; in Deposit it usually passes Detention alone,
but sometimes Possession also, though in this case also it is derivative
Possession, not Possession of the thing as one's own. (4 §§ 138-170,
comm.) The cases in which Ownership (Dominium) is passed by
Tradition may be reduced to three classes, traditio donandi animo,
traditio credendi animo, and traditio solvendi animo. In the first,
it simply confers ownership on the donee ; in the second, it confers
ownership on the transferee, and subjects him to an obligation ; in
the third, it confers ownership on the transferee, and discharges the
transferor of an obligation. In the two latter cases, i. e. tradition by
way of loan, as of money (mutui datio), and tradition by way of pay-
ment (solutio), the disposition or justa causa accompanying tradition
contains much thatis unessential to the transfer of dominium or owner-
ship, the only absolutely essential element being the intention of the
parties to convey and take dominium. In Donation the justa causa tra-
ditionis consists solely of this essential element. The justa causa, then,
which must accompany delivery, must involve the animus or voluntas
transferendi dominii, and this, apparently, is given as the whole
of the matter in a passage of Gaius quoted in Digest : ' Hae quoque
res, quae traditione nostrae fiunt, jure gentium nobis adquiruntur ;
nihil enim tarn conveniens est naturali aequitati quam voluntatem
domini volentis rem suam in alium transferre ratam haberi,' Dig.
41, 1, 9, 3. Tradition is a mode of acquisition, 'in accordance with
Jus Gentium, for it is a plain dictate of natural justice, that the
§§ 14 a-27.] RERVM C. ADQVISITIONES CIVILES 139
will of an owner to transfer his ownership to another should be
allowed to take effect.'
In one case, as we have seen, the operation even of contract and
delivery combined was limited by the Twelve Tables, namely, in
Sale. Hence it came about that tradition did not operate a trans-
mutation of property without a further condition — payment of the
purchase money, unless the sale is intended to be a sale on credit,
or satisfaction is made to the vendor in some way. Inst. 2, 1, 41.
Delivery sometimes precedes the intention to transfer, for instance, in
a conditional sale ; in which case the transfer of property may be sus-
pended until the condition is fulfilled. The intended transferee may
be an incerta persona, for instance, when money is scattered among
a mob by a praetor or consul (missilium jactus). Inst. 2, 1, 46.
Tradition in Roman law was never fictitious ; it was always an
actual delivery of a power of physical or corporeal control, so the de-
livery of the keys of a house is not something symbolical or fictitious,
but a real transfer of a power of exercising dominion. The restriction
of tradition, as a mode of acquiring ownership, to res nee mancipi
had previously to the time of Gaius lost much of its importance, the
Praetor protecting one to whom a res mancipi, such as land, had
been delivered, as if Quiritarian ownership of it had been obtained
by usucapion, § 41. In Justinian's time Tradition had entirely super-
seded the civil titles of surrender before the magistrate and manci-
pation : the ancient distinction between res mancipi and res nee
mancipi being no longer in existence.
§ 21. This section contains the clearest statement which we possess
of the technical distinction between the two classes of provinces
instituted by Augustus. Those which were not under the direct
control of the Princeps were technically under the control of the
Senate and People (compare Dio Cassius, liii. 12) ; but, as the People
was mainly represented by the Senate, they are often spoken of as
Senatorial Provinces. The provinces of Caesar were far more
numerous ; about the time of Gaius they numbered thirty-one —
twenty-one being governed by Legati pro praetore, nine by Pro-
curators, and Egypt by its Praefect — while the Public Provinces
under Proconsuls numbered but eleven. See Marquardt, Staatsver-
waltung, i. p. 494. The attempt to keep these departments distinct
was a failure ; and the control of the Public Provinces by the Prin-
ceps was now very considerable, especially in matters of jurisdiction.
But the technical difference between the two kinds of provinces was
still preserved in the reign of Marcus Aurelius. Thus we find that
Emperor causing provinces to be transferred from the one to the
other category in obedience to military considerations, and asking
the Senate to vote money to him from the Aerarium, the treasury
140 DE ADQVIRENDO RERVM DOMINIO [n. §§ 28-39.
which contained the dues from the Public Provinces (Vita Marci, 22,
Dio Cassius, Ixxi. 33).
During the Kepublic the taxes paid by provincials had been
called stipendium — a word which points to the view originally taken
that these revenues were meant to meet military expenses ; for
stipendium means pay for the army. During the Principate the
word tributum came also to be used for imperial taxes ; but this
passage of Graius shows that stipendium was "still employed for the
dues paid by the Public Provinces. The distinction between stipen-
diary and tributary provinces is perhaps based on a difference in
the mode of collecting, not of levying, the taxes. It seems that in
the Public Provinces the taxes were still collected by the local
governments themselves and paid to the Quaestors, whereas in
Caesar's Provinces the Procurators came into direct contact with the
tax-payer. The mode of collection was in the second case direct,
in the first indirect. It is also possible that the ownership of the soil
in Caesar's Provinces was regarded as vested in the Princeps, that
of the soil in the Public Provinces as vested in the Eoman state (see
Mommsen, Staatsrecht, ii. p. 1088), and this distinction may be im-
plied in the two classes of provincialia praedia mentioned by Gaius.
The mode of taxation was uniform for the whole Empire, and the
assessments were made at intervals by the Emperor's officials. The
taxes were either imports on the land (tributum soli) or on the person
(tributum capitis). The land-tax was in most provinces paid either
in money or grain, more usually in the former, although in certain
minor districts it was delivered in the form of other produce. The
personal tax might be one on professions, income, or movable
property. Occasionally it was a simple poll-tax, this latter burden
being probably imposed on those provincials whose property fell
below a certain rating.
§ 24. The legati Caesaris or Presidents of imperial provinces had
originally on jurisdiction to preside over legis actio, but this was
afterwards conferred upon them, Tac. Ann. 12, 60.
§ 26. Gaius probably explained in this place the effect of tradition
of a res mancipi, § 41, and then went on to treat of the jus commercii.
Ulp. 19, 4, 5 Mancipatio locum habet inter cives Eomanos et Latinos
coloniariosLatinosque Junianos eosque peregrines quibus commercium
datum est. Commercium est emendi vendendique invicem jus.
RERVM INCORPORALIVM ADQVISITIONES CIVILES.
§ 28. (Res) incorporates tra- § 28. Incorporeal things are
ditionem non recipere mani- obviously incapable of transfer by
festum est. delivery of possession (traditio).
§ 29. Sed iura praediorum §29. But while before a magis-
ii. §§ 28-39.] RERVM INC. ADQVISITIONES CIVILES 141
urbanorum in iure cedi (tan-
turn) possunt ; rusticorum uero
etiam mancipari possunt.
^»
§ 30. Vsusfructus in iure
cessionein tantum recipit. nam
dominus proprietatis alii usum-
fructum in iure cedere potest,
ut ille usumfructum habeat et
ipse nudam proprietatem reti-
neat. ipse ususfructuarius in
iure cedendo domino proprie-
tatis usumfructum efficit, ut
a se discedat et conuertatur
in proprietatem ; alii uero in
iure cedendo nihilo minus ius
suum retine£; creditur enim
ea cessione nihil agi.
§ 31. Sed haec scilicet in
| Italicis praediis ita sunt, quia
j et ipsa praedia mancipationem
et in iure cessionem recipiunt.
alioquin in prouincialibus prae-
diis siue quis usumfructum siue
ius eundi agendi aquamue du-
cendi uel altius tollendi aedes
aut non tollendi, ne lumini-
bus uicini officiatur, ceteraque
similia iura constituere uelit,
pactionibus etsiipulationibus id
efficere potest, quia ne ipsa qui-
dem praedia mancipationem aut
{^71} iure cessionem recipiuni.
§ 32. Bed cum ususfructus
et hominum et ceterorum ani-
malium constitui possit, intel-
legere debemus horum usum-
r & , . ...
iructum etiam. in prouincns per
in iure cessionem constitui posse.
| 33. QuocZ autem diximus
! usumfructum in iure cessionem
/ tantum recipere, non est temere
dictum, quamids etiam per
mancipationem constitui possit
eo quod in mancipanda pro-
prietate detrahi potest; non
enim ipse ususfructus manci-
trate urban servitudes can only
be created by surrender before a
magistrate ; rural servitudes may
either be acquired by this method
or by mancipation.
§ 30. Usufruct can only be
created by surrender. A usufruct
surrendered by the owner of the
property passes to the surrenderee,
leaving the bare property in the
owner. A usufruct surrendered
by the usufructuary to the owner
of the property passes to the latter
and is merged in the ownership.
Surrendered to a stranger it con-
tinues in the usufructuary, for the
surrender is deemed inoperative.
§ 31. These modes of creating
usufruct are confined to estates in
Italian soil, for only these estates
can be conveyed by mancipa-
tion or judicial surrender. On
provincial soil, usufructs and
rights of way on foot, horseback,
and for carriages, watercourses,
rights of raising buildings or not
raising, not obstructing lights,
and the like, must be created by
pact and stipulation ; for the lands
themselves, which are subject to
these servitudes, are incapable
of conveyance by mancipation or
surrender before a magistrate.
§ 32. In slaves and other
animals usufruct can be created
even on provincial soil by sur-
render before a magistrate.
§ 33. My recent statement that
usufruct was only constituted by
surrender before a magistrate was
not inaccurate, although it may
in this sense be created by man-
cipation that we may mancipate
the property and reserve the usu-
fruct ; for the usufruct itself is
142 DE ADQVIRENDO RERVM DOMINIO [n. §§ 28-39.
patur, sed cum in mancipanda
proprietate deducatur, eo fit ut
&pud alium ususfructus, apud
alium proprietas sit.
§ 34. Hereditas quoque in
iure cessionem tantum recipit.
§ 35. Nam si is, ad quern ab
intestate legitimo iure pertinet
hereditas, in iure earn alii ante
aditionem cedat, id est ante-
quam heres extiterit, proinde
fit heres is cui in iure cesserit,
ac si ipse per legem ad here-
ditaiem uocatus esset ; post
obligationem uero si cesserit,
nihilo minus ipse heres per-
manet et ob id creditoribus
tenebitur^ debita uero pereunt
eoque modo debitores heredi-
tarii lucrum faciunt; corpora
uero eius hereditatis proinde
transeunt ad eum cui cessa est
hereditas, ac si ei singula in
iure cessa fuissent.
§ 36. Testamento autem
scriptus heres ante aditam
quidem hereditatem in iure
cedendo earn alii nihil &git ;
postea uero quam adierit si
cedat,ea accidunt, quae proxime
diximus de eo ad quern ab in-
testato legitimo iure pertinet
hereditas, si post obligationem
(in) iure cedat.
§ 37. Idem et de necessariis
heredibus diuersae scholae au-
ctores existimant, quod nihil
uidetur interesse utrum (ali-
quis) adeundo hereditatem fiat
heres, an inuitus existat ; quod
quale sit, suo loco apparebii.
sed nostri praeceptores putant
nihil agefe necessarium here-
dem, cum in iure cedat heredi-
tatem.
not mancipated, though in manci-
pating the property the usufruct
is reserved so that the usufruct
is vested in one person and the
property or ownership in another.
§34. Inheritances also are only
alienable by surrender before a
magistrate.
§ 35. If the person entitled by
the statutory rules of the civil
law of intestacy surrender the in-
heritance before acceptance, that
is to say, before his heirship is
consummated, the surrenderee be-
comes heir j ust as if he was en titled
by agnation ; but if the agnate
surrenders after acceptance, in
spite of the surrender he con-
tinues heir and answerable to the
creditors, his rights of action
beingextinguished and the debtors
to the estate thus discharged of
liability without payment, while
the ownership in the corporeal ob-
jects of the inheritance passes to
the surrenderee just as if it had
been surrendered in separate lots.
§ 36. The surrender of an in-
heritance by a person instituted
heir by will before acceptance is
inoperative ; but after acceptance
it has the operation just ascribed
to the agnate's surrender of an
intestate succession after accept-
ance.
§ 37. And so has a surrender
by a necessary successor according
to the authorities of the other
school, who maintain that it
seems immaterial whether a man
becomes heir by acceptance or
whether he becomes heir ipso
jure, irrespective of his intention
(a distinction that will be ex-
plained in its proper place) : ac-
cording to my school a necessary
heir's surrender of the inheri-
tance is inoperative. [3 § 85.]
ii. §§28-39.] RERVM INC. ADQVISITIONES CIVILES 143
§ 38. Obligationes quoquo § 38. Obligations, in whatever
modo contractae nihil eorura way contracted, are incapable of
recipiunt. nam quod mini ab transfer by either method. For
aliquo debetur, id si uelim tibi if I wish to transfer to you my
deberi, nullo eorum modo qui- claim against a third person, none
bus res corporales ad alium of the modes whereby corporeal
transferuntur id efficere pos- things are transferred is effective :
sum, sed opus est, ut iubente bu* * k "JJ""?1 St* ^V™7
me tu ab eo stipuleris ; quae order the debtor should bind him-
/E ., , r vi self to you by stipulation : where-
res efficit ut a me hberetur et m debtor is discharged of
mcipiat tibi teneri ; quae dicitur hfg del/to me and becomes liable
nouatio obligations. to you . which transformation is
§ 39. Sine hac uero nouatione called novation of an obligation,
non poteris tuo nomine agere, § 39. In default of such nova-
sed debes ex persona mea quasi tion he cannot sue in his own
cognitor aut procurator nieus name, but must sue in my name
experiri. as mv cognitor or procurator.
§ 28. So incorporeal hereditaments in English law were said to
lie in grant, not in feoffment, i. e. to be only conveyable by deed, or
writing under seal ; whereas corporeal hereditaments were convey-
able by feoffment, i. e. by livery of seisin or delivery of possession.
§ 30. Inalienability was no peculiar characteristic of Usufruct and
other personal servitudes. Alienation of rights, or singular succes-
sion as opposed to inheritance or universal succession, was the excep-
tion, not the rule. Dominion over res singulae was alienable, but
almost all other rights were intransferable. If we except the case of
hereditas legitima delata, § 35, hereditas, as we shall see, was inalien-
able : and what is said of Urban and Eural praedial servitudes, §§ 29, 30,
refers to their creation, not to their alienation. In the law of Per-
sons, Patria potestas, 1 § 134, and Tutela in some cases, 1 § 168,
could be transferred but only by surrender before a magistrate (in
jure cessio), i. e. a process which feigned that there was no transfer.
Manus and mancipium could be extinguished but not transferred
[Ihering, § 32], except that, apparently, mancipium could be retrans-
ferred to the natural parent or ma_cipator, 1 § 132.
§ 31. It appears that convention (pactio et stipulatio) alone un-
accompanied by tradition or quasi-tradition was capable of creating
a right analogous to a Roman servitude in provincial land, to which
in jure cessio and mancipatio were inapplicable, in opposition to the
principle of Roman law, as stated by some modern writers, that mere
agreement can only create at the utmost an obligation (jus in perso-
nam), and in order to create a jus in rem must be accompanied by de-
livery of possession. But in our authorities this principle is confined
to res corporales, which alone admit of real tradition. Exceptional
instances in which agreement without any further accompaniment
144 DE ADQVIRENDO RERVM DOMINIO [n. §§ 28-39.
creates a jus in rem, that is, transfers either dominion or jus in
re aliena, arehypotheca (see 3 § 91, comm.) and societas omnium bono-
rum (see 3 § 148). Vangerow, however, holds, § 350, that pactio and
stipulatio could not create a genuine servitus, enforceable against the
servient person or tenement, but only an Obligatio, enforceable against
the contracting party and his heirs : that in the time of Gaius this
was all that could be accomplished ; but that afterwards, when quasi-
traditio of res incorporalis was recognized as practicable, genuine
Servitudes could be thus constituted. The distinction between
solum Italicum and provinciale was subsequently abolished, and
in jure cessio and mancipatio disappeared. In the Institutes of
Justinian we are told that both praedial servitudes (Inst. 2, 3, 4) and
the personal servitude of usufruct (Inst. 2, 4, 2) are created by pacts
and stipulations, nothing being there said of quasi-traditio, as a con-
dition of acquiring servitudes. The combination of pact and stipula-
tion for the purpose has been explained as an amalgamation of foreign
and Koman law, a mere pact being recognized by the former, but
unless embodied in a stipulation unenforceable by the latter (cf. Sohm,
§ 69 ; Dernburg, Pandekten, § 251, n. 16).
§ 32. In accordance with the principle that movables are personal,
a Roman could convey movable property by conveyances confined
to citizens, wherever such property was situated.
The servitus altius tollendi, or the right of increasing the height
of an edifice, is at first sight very enigmatical. My right of increas-
ing the height of my building, and thus obstructing the lights of my
neighbour, would seem to be part and parcel of my unlimited rights of
dominion : and, if a dispute arose, one would think that the burden
of proof would be on my neighbour, who would have to prove a
special limitation of my rights as owner of a praedium serviens and
a special right residing in himself as owner of a praedium dominans :
that is to say, that instead of my having to prove a servitude or jus
altius tollendi, my neighbour would have to prove a servitude or jus
altius non tollendi. Cum eo, qui tollendo obscurat vicini aedes, quibus
non serviat, nulla competit actio, Dig. 8, 2, 9. 'A man who by
building obscures his neighbour's lights, unless subject to a servitude,
is not actionable.' Altius aedificia tollere, si domus servitutem non
debeat, dominus ejus minime prohibetur, Cod. 3, 34, 8. 'A man
cannot be prevented from raising the height of his house unless it is
subject to a servitude.' The same rule is laid down in English
law. The following is perhaps the most probable solution of the
problem :
The extinction of Rural and Urban servitudes was governed by
different rules. The extinction of a Rural servitude was more easily
accomplished than that of an Urban servitude : it was effected by
ii. §§28-39.] RERVM SINGVLARVM ADQVISITIONES 145
simple non-user (non utendo) on the part of the dominant property for
a period, originally, of two years, afterwards of ten. The extinction
of an Urban servitude demanded, besides the negative omission of
use on the part of the dominant, a positive possession of freedom
(usucapio libertatis) on the part of the servient owner. Gaius (ad
Edictum Provinciale, Dig. 8, 2, 6) thus explains the difference : in
a servitus ne amplius tollantur aedes, or ne luminibus aedium
officiatur, if the windows of the dominant house are closed with
masonry there is a non-usus of the servitude on the part of the
dominant owner ; if at the same time the height of the servient
house is raised there is possession of freedom on the part of the
servient owner. Or in a servitus tigni immissi, if the dominant
owner removes the beam from his neighbour's wall there is on his
part non-usus ; if the servient owner builds up the orifice in
which the beam was inserted, there is on his part usucapio liber-
tatis. Originally Servitudes, like Dominium, could be acquired by
Usucapion ; and as Usucapion was applied to the extinction of Urban
Servitudes, it was regarded by the jurists as a mode of acquiring or
of creating an antagonistic servitude. On the extinction of a Rural
servitude, the servient property simply recovered its original dimen-
sions : an Urban servitude was a permanent diminution of the
servient property, and on its extinction the servient property, instead
of dilating to its original size, recovered what it had lost in the shape
of the annexation of a contrary servitude. When at an unknown
date the Usucapion of servitudes was abolished by a lex Scribonia,
an exception was made in favour of these Contrary servitudes, which
in fact were not genuine servitudes, but merely the expression of the
greater difficulty of extinguishing an Urban servitude. Libertatem
servitutium usucapi posse verius est, quia earn usucapionem sustulit
lex Scribonia, quae servitutem constituebat, non etiam earn, quae liber-
tatem praestat sublata servitute, Dig. 41, 3. 4, 28. 'The better view is
that extinction of servitude by usucapion is admissible, for the usuca-
pion abolished by the lex Scribonia was usucapion whereby a servitude
is constituted, not that which liberates by extinction of servitude. '
Thus he who laboured under a disability of building (jus altius non
tollendi) was regarded on its extinction as having acquired the oppo-
site easement, jus altius tollendi ; he wrho was relieved of the servitus
ne luminibus officiatur was regarded as acquiring a jus officiendi
luminibus vicini ; he who was relieved from the servitus stillicidii
avertendi in tectum vel aream vicini was deemed to acquire a jus stil-
licidii non avertendi, Gaius ad Edictum Provinciale, Dig. 8, 2, 2. It
does not appear that the ordinary requisites of Usucapio, titulus and
bona fides (§ 61, comm.), were required in this usucapio libertatis.
In usucapio libertatis, a right being acquired, the ten years are
WHITTUCK
146 DE ADQVIRENDO RERVM DOMINIO [ir. §§ 40-61.
complete on the commencement of the last day : in non-usus, a right
being lost, the ten years are not complete till the last day is termin-
ated.
The three servitudes, ne prospectui officiatur, ne luminibus officiatur.
ne altius tollatur, are similar in character, but differ in their degree of
extension. The servitus ne luminibus officiatur is not so extensive as
the servitus ne prospectui officiatur, for that may amount to an obstruc-
tion of prospect which does not cause a diminution of light, Dig. 8, 2,
1 5 : but is wider than servitus altius non tollendi, because light may be
intercepted by other causes than buildings, by plantation, for instance,
though building is the principal means of interception.
Servitus luminum has been already noticed, §§ 1-14, comm., as
apparently identical with jus luminis immitteiidi, i. e. the right of
having a window in a neighbour's wall. Luminum servitute con-
stituta id adquisitum videtur ut vicinus lumina nostra excipiat,
Dig. 8, 2, 4. 'The servitude of Lights entitles the owner of the
dominant house to have a window in the wall of his servient
neighbour.'
It appears from the above explanation that the servitus luminum
and the servitus ne luminibus officiatur belong to different categories,
for the servitus luminum, like the jus officiendi luminibus, belongs
to the category of jus habendi ; while the servitus ne luminibus
officiatur belongs to the category of jus prohibendi.
§ 34. Of. 3 §§ 85-87. The statement that an inheritance is not
mancipable may seem inconsistent with what we are afterwards told
of the testament by bronze and balance, § 102. There is, however,
no real inconsistency. The subject mancipated in the will by bronze
and balance, though a universitas, was not an inheritance — there was
no inheritance to mancipate, for nemo est heres viventis — but the
collective rights — familia, patrimonium — of the testator.
§ 38. The mode of transferring obligations may be more properly
considered hereafter, when we examine the titles by which Jus in
personam originates or terminates, 3§§ 155-162, comm. Gaius glanced
at the titles to Hereditas and Obligatio because he was treating of
Res incorporales under which they are included ; but he should
have abstained from discussing Obligatio because he is now dealing
with Jus in rem, and he should have abstained from discussing
Hereditas because he is now dealing with Res singulae.
§'40. Sequitur ut admonea- § 40. We must next observe
mus apud peregrines quidem that for aliens there is only one
unum esse dominium ; nam ownership and only one owner at
aut dominus quisque est, aut the same time of a thing, and so
.dominus non intellegitur. quo it was in ancient times with the
iure etiam populus° Romanus people of Rome, for a man had
II. §§40-61.]
DE VSVCAPIONIBVS
147
olim utebatur : aut enim ex
iure Qmritium unusquisque
dominus erat, aut non intelle-
gebatur dominus. sed postea
diuisionem accepit dominium,
ut alius possit esse ex iure
Quiritium dominus, alius in
bonis habere.
§ 41. Nam si tibi rem man-
cipi neque mancipauero neque
in iure cessero, sed tan turn
tradidero, in bonis quidein tuis
ea res efficitur, ex iure Quiri-
tium uero mea permanebit,
donee tu earn possidendo usu-
capias ; semel enim inpleta
usucapione proinde pleno iure
incipit, id est et in bonis et ex
iure Quiritium tua res esse, ac
si ea mancipata uel in iure
cessa (esset.
§ 42. Vsucapio antem) mo-
bilium quidem rerum anno
conpletur, fundi uero et aedium
biennio ; et ita lege xn tabu-
larum cautum est.
Inst. 2, 6 pr.
§ 43. Ceter%m etiam earum
rerum usucapio nobis conpetit,
quae non a domino nobis tra-
ditae fuerint, siue mancipi sint
eae res siue nee mancipi, si
modo eas bona fide acceperi-
mus, cum crederemus eum qui
traderet dominum esse.
§ 44. Quod ideo receptum
uidetur, ne rerum dominia diu-
tius in incerto essent, cum suf-
ficeret domino ad inquirendam
rem suam anni aut biennii
spatium, quod tempus ad usu-
capionem possessor! tributum
est. Inst. 1. c.
either quiritary dominion or none
at all. They afterwards decom-
posed dominion so that one person
might have quiritary ownership
of an object of which another
person had bonitary ownership.
§ 41. For if a mancipable thing
is neither mancipated nor surren-
dered before a magistrate but
simply delivered to a person, the
bonitary ownership passes to the
alienee, but the quiritary owner-
ship remains in the alienor until
the alienee acquires it by usu-
capion ; for as soon as usucapion
is completed, plenary dominion,
that is, the union of bonitary
and quiritary ownership, vests in
the alienee just as if he had ac-
quired the thing by mancipation
or surrender before a magistrate.
§ 42. Usucapion of movables
requires a year's possession for
its completion, of land and houses,
two years' possession, a rule which
dates from the law of the Twelve
Tables.
§ 43. Quiritary ownership of a
thing may also be acquired by
usucapion, when possession of it
has been transferred to one by a
person who is not the owner of
it, and this is the case in things
either mancipable or not mancip-
able, if they are received in good
faith by a person 'who believes
the deliverer to be owner of them.
§ 44. The reason of the law
appears to be the inexpediency of
allowing ownership to be long
unascertained, the previous owner
having had ample time to look
after his property in the year or
two years which must elapse
before usucapion is complete.
^45. Sed aliquando etiamsi § 45. Some things, however,
maxime quis bona fide alienam notwithstanding the utmost good
L a
148 DE ADQVIRENDO RERVM DOMINIO [n. §§ 40-61.
rem possideat. non tamen ilK
usucapio procedit, uelut si quis
rem furtiuam aut ui possessam
possideat; nam furtiuam lex
xii tabularum usucapi prohibet,
ui possessam lex lulia et Plau-
tia. Inst. 2, 6, 1.
§ 46. Item prouincialia prae-
dia usucapioftem non recipiunt.
§ 47. (Item olim) mulieris,
quae in agnatorum tutela erat,
res mancipi usucapi non pote-
rant, praeterquam si ab ipsa
tutore (auctore) traditae es-
sent ; idque ita lege xn tabu-
larum cautum erat.
§ 48. Item liberos homines
et res sacras et religiosas usu-
capi non posse manifestum est.
(§ 49. Quod ergo uulgo dici-
tur furtiuarum rerum et ui
possessarum usucapionem per
legem xii tabularum problbi-
tam esse, non eo pertinet, ut ne
ipse fur quiue per uim possidet
usucapere possit(nam huic alia
ratione usucapio non conpetit,
quia scilicet mala fide possidet) ;
sed nee ullus alius, quamquam
ab eo bona fide ernerit, usuca-
piendi ius habeat.
Inst. 2,6,3.
§ 50. Vnde in rebus mobi-
libus non facile procedit, ut
'bonae fidei possessor i usucapio
ccwpetat, quia qui alienam rem
uendidit et tradidit furtum
committit ; idemque accidit
etiam si ex alia causa tradatur.
sed tamen hoc aliquando aliter
se habet ; nam si heres rem de-
functo commodatam aut loca-
tam uel apud eum depositam
existimans earn esse heredita-
riam uendiderit aut donauerit,
faith of the possessor, cannot be
acquired by usucapion, things,
for instance, which have been
stolen or violently possessed,
stolen things being declared in-
capable of usucapion by the law
of the Twelve Tables, and things
violently possessed by the lex
Julia and Plautia.
§46. So,too,provinciallandand
houses are incapable of usucapion.
§ 47. Formerly, when a woman
was under her agnate's guardian-
ship, her mancipable things were
not subject to usucapion, unless
she herself delivered possession
of them with her guardian's
sanction, and this was an ordi-
nance of the Twelve Tables.
§ 48. Free men, also, and things
sacred or religious, are obviously
not susceptible of usucapion.
§ 49. The common statement
that in things stolen or violently
possessed, usucapion is barred
by the law of the Twelve Tables,
means, not that the thief or vio-
lent dispossessor is incapable of
acquiring by usucapion, for he is
barred by another cause, his want
of good faith ; but that even a
person who purchases in good
faith from him is incapable of
acquiring by usucapion.
§ 50. Accordingly, in things
movable a possessor in good faith
cannot easily acquire ownership by
usucapion, because he that sells
and delivers possession of a thing
belonging to another is guilty of
theft. However, sometimes this
is otherwise, for an heir who be-
lieves a thing lent or let to, or
deposited with, the deceased to be
a portion of the inheritance, and
sells it or gives it away, is not
guilty of theft : again, the usu-
fructuary of a female slave who
n. §§ 40-61.]
DE VSVCAPIONIBVS
149
furtum non committit ; item si
is, ad quern ancillaeususfructus
pertinet, partum etram suum
esse credens uendiderit aut do-
nauerit, furtum non committit ;
/urtum enim sine adfectu fu-
randi non committitur. aliis
quoque modis accidere potest,
ut quis sine uitio furti rem
alienam ad aliquem transferat
et efficiat, ut a possessore usu-
capiatur. Inst. 2, 6, 3 and 4.
§ 51. Fundi quoque alieni
potest aliquis sine ui posses-
sionem nawcisci, quae uel ex
neglegentia domini uacet, uel
quia dominus sine successore
decesserit uel longo tempore
afuerit ; qu&m si ad alium bona
fide accipientem transtulerit,
poterit usucapere possessor ; et
quamuis ipse, qui uacantem
possessionem nactus est, intel-
legat alienum esse func^um, ta-
fiien nihil hoc bonae fidei pos-
sessor! ad usucapionem noce£,
(citm) inpro&ata sit eorum sen-
ientia, qui putauerint fvrtiuum
fund um fieri posse. Inst. 2, 6, 7.
§ 52. Rursus ex contrario ac-
cidit ut qui sciat alienam rem
se possidere usucapiat, ueluti
si rem hereditariam, cuius pos-
sessionem heres nondum nactus
est, aliquis possederit ; nam ei
concessum (est usu)capere, si
modo ea res est quae recipit
usucapionem ; quae species pos-
sessionis et usucapionis pro
herede uocatur.
§ 53. Et in tantum haec usu-
capio concessa est, ut et res
quae solo continentur anno
usucapiantur.
§ 54. Quare autem hoc casu
etiavi soli rerum annua con-
stituta sit usucapio, ilia ratio
believes her offspring to be his
property and sells it or gives it
away, is not guilty of theft ; for
there can be no theft without un-
lawful intention : and similarly
other circumstances may prevent
the taint of theft from attaching
to the delivery of a thing belong-
ing to another, and enable the
receiver to acquire by usucapion.
§51. Possession of land belong-
ing to another may be acquired
without violence, when vacant by
neglect of the owner, or by his
death without leaving a suc-
cessor, or his long absence from
the countiy, and an innocent
person to whom the possession
is transferred may acquire the
property by usucapion; for though
the original seizer of the vacant
possession knew that the land
belongs to another, yet his know-
ledge is no bar to the usucapion
of the innocent alienee, as it is
no longer held that theft can be
committed of land.
§ 52. On the other hand, know-
ledge that one is acquiring pos-
session of another person's pro-
perty (mala fides) does not al-
ways prevent usucapion, for any
one may seize a portion of an
inheritance of which the heir has
not yet taken possession and
acquire it by usucapion, provided
it is susceptible of usucapion, and
he is said to acquire by title of
quasi heir.
§ 53. With such facility is this
usucapion permitted that even
land may be thus acquired in a
year.
§ 54. The reason why even land
in these circumstances demands
only a year for usucapion is, that
150 DE ADQVIRENDO RERVM DOMINIO [n. §§ 40-61.
est, quod olim rerum heredita-
riarum possessions uelvt ipsae
hereditates usucapi credeban-
tur, scilicet anno, lex enim
xn tabularum soli quidem res
biennio usucapi iussit, ceteras
uero anno, ergo hereditas in
ceteris rebus uidebatur esse,
quia soli non est quia neque
corporalis est. (et} quamuis
postea creditum sit ipsas here-
ditates usucapi non posse, ta-
men in omnibus rebus beredi-
tariis, etiam quae solo tenentur,
annua usucapio remansit.
§ 55. Quare autem omnino
tarn inproba possessio et usu-
capio concessa sit, ilia ratio est,
quod uoluerunt ueteres matu-
rius hereditates adiri, ut essent
qui sacra facerent, quorum illis
temporibus sujnina obseruatip
fait, et ut creditores haberent
a quo suum consequerentur.
§ 56. Haec autem species
possessionis et usucapionis
etiam lucratiua uocatur ; nam
sciens quisque rem alienam
lucri facit.
§ 57. Sed hoc tempore mm
non est luoratiua. nam ex
auctoritate Hadriani senatus-
consultum factum est u^ tales
usucapione$ reuocarentur. et
ideo potest heres ab eo qui rem
usucepit hereditateni petendo
proinde earn rem consequi,
atque si usucapta non essei.
§ 58. Necessario tamen herede
extante nihil ipso iure pro
herede usucapi potest.
in ancient times the possession
of property belonging to the in-
heritance was held to be a
means of acquiring the inheri-
tance itself, and that in a year :
for while the law of the Twelve
Tables fixed two years for the
usucapion of land and one year
for the usucapion of other things,
an inheritance was held to fall
under the category of ' other
things,' as it is neither land nor
corporeal : and though it was
afterwards held that the inheri-
tance itself was not acquirable by
usucapion, yet the property be-
longing to the inheritance, includ-
ing land, continued acquirable by
a year's possession.
§ 55. The motive for permitting
at all so unscrupulous an acqui-
sition was the wish of the ancient
lawyers to accelerate the accept-
ance of inheritances, and thus pro-
vide persons to perform the sacred
rites, to which in those days the
highest importance was attached,
and also to secure some one from
whom creditors might obtain
satisfaction of their claims.
§ 56. This mode of acquisition
is sometimes called lucrative usu-
capion, for the possessor know-
ingly acquires the benefit of
another's property.
§ 57. In the present day, how-
ever, this kind of usucapion is
not lucrative, for the Senate on
the motion of Hadrian decreed
that such usucapions are re-
vocable, and accordingly where
a person thus acquired a thing by
usucapion, the heir can sue him
by hereditatis petitio and recover
the thing just as if the usuca-
pion had never been completed.
§ 58. The existence of a neces-
sary heir excludes ipso jure the
operation of this kind of usuca-
pion.
ii. §§ 40-61.]
DE VSVCAPIONIBVS
151
§ 59. There are other condi-
tions under which a knowledge
of another's ownership is no bar
to usucapion. After a fiduciary
mancipation or surrender before
a magistrate of his property, if
the owner himself should become
possessed of it, he recovers his
ownership even over land in the
period of a year, by what is called
usureception or a recovery by
possession, because a previous
ownership is thereby recovered
by usucapion.
§ 60. The fiduciary alienee is
either a creditor holding the
property as a pledge or a friend
to whom the property is made
over for safe custody : in the
latter case the ownership is always
capable of usureception : but in
that of a creditor, though the
owner can always thus re-acquire
after payment of the debt, before
payment of the debt he can only
re-acquire provided he has not
obtained the thing of his creditor
on hire or got possession of it
by request and licence ; in this
case he re-acquires by a lucrative
usucapion.
§ 61. Again, the owner of a
thing mortgaged to the people and
sold for non-payment of the mort-
gage debt may re-acquire it by
possession, but in this case, if it
is land, usucapion is biennial :
and this is the meaning of the
saying, that after praediatura (a
public sale) land is recoverable
by (biennial) possession, a pur-
chaser from the people being called
praediator.
§§ 40, 41. Roman law originally only recognized one kind of
ownership, called emphatically, quiritary ownership. Gradually,
however, certain kinds of ownership were recognized which, though
they failed to satisfy all the elements of the definition of quiritary
dominion, were practically its equivalent, and received from the
courts a similar protection. These kinds of ownership might fall
§ 59. Adhuc etiam ex aliis
causis sciens quisque rem alie-
nam usucapit. cam qui rem
alicui fiduciae causa manciple
dederit uel in iure cesserit, si
eandem ipse possederit, potest
usucapere, anno scilicet,
{etiam} soli si sit. quae spe-
cies usucapionis dicitur usure-
ceptio, quia id quod aliquando
habuimus recipimus per usu-
capionem.
§ 60. Sec? fiducia contrahitur
aut cum creditore pignoris iure,
aut cum amico, quo tutius no-
strae res apud eum sint ; et
siquidem cum amico contracta
sit fiducia, sane omni modo
conpetit ususreceptio ; si uero
cum creditore, soluta quidem
pecunia omni modo conpetit,
nondum uero soluta ita demum
conpetit, si neque conduxerit
earn rem a creditore debitor,
neque precario rogauerit, ut
earn rem possidere liceret; quo
casu lucratiua ususcapio con-
petit.
§ 61. Item si rem obligatam
sibi populus uendiderit eamque
dominus possederit, concessa
est ususreceptio ; sed hoc casu
praedium biennio usurecipitur.
et hoc est quod uulgo dicitur
ex praediatura possessionem
usurecipi ; nam qui mercatur
a populo praediator appel-
152 DE ADQVIRENDO RERVM DOMINIO [n. §§40-61.
short of quiritary ownership in three respects, (i) either in respect
of the persons in whom they resided, (2) or of the objects to
which they related, (3) or of the title by which they were
acquired.
(1) To be capable of quiritary ownership a man must have one
of the elements of Roman citizenship. Jus quiritium, right
quiritary, sometimes, indeed, denotes all the elements of civitas
Romana, Roman citizenship (1 §§ 28, 35, comm.). Beneficio princi-
pal! Latinus civitatem Romanam accipit si ab imperatore jus
quiritium impetraverit, Ulpian 3, 2. But the only element of
citizenship required for quiritary ownership was commercium, and
as we have seen that the Latinus possessed commercium with-
out connubium, the Latinus was capable of quiritary dominion.
The alien (peregrinus) on the contrary was incapable, except by
special privilege : yet he might have ownership, which he acquired
by titles of jus gentium, e. g. tradition, occupation, accession, &c.,
and could maintain by a real action in the court of the praetor
peregrinus or praeses provinciae.
(2) Provincial land was not capable of quiritary ownership.
Originally, indeed, private ownership appears to have been confined
to things capable of being taken by the hand (mancipatae), that is
to movables ; and lands were only subject to public dominion or
were the common property of the gens. Private ownership, however,
first invaded a portion of the land, the heredium, or hereditary
homestead of the gentilis, and finally became a general institution ;
and ager publicus, as opposed to ager privatus, almost ceased to
exist on Italian soil. But in the provinces subsequently conquered,
land continued to the end subject exclusively to public dominion ;
and thus one of the essential features of feudal tenure, the exclusive
vesting of absolute or ultimate dominion over land in the sovereign
as overlord, a principle commonly supposed to have been first intro-
duced into Europe by the invading German hordes, had already
existed, though in a different form, over by far the greater portion
of the Roman world. It is true that the provinces were divided into
private possessions and public domains ; but private possessions as
well as public domains were subject to a vectigal, and the tenants of
the one and lessees of the other were equally devoid of absolute
ownership. Rights over solum provinciale of a more or less limited
kind were however acquirable, though not by titles of jus civile, and
recoverable by real action, for which Gaius uses the terms possessio
and ususfructus, § 7.
(3) Bonitary ownership was distinct both from an alien's ownership
and from rights over provincial land : it may be defined as the
property of a Roman citizen in a subject capable of quiritary
ii. §§40-61.] DE VSVCAPIONIBVS 153
ownership, acquired in a way not known to the jus civile, but
introduced by the praetor, and protected by his imperium or
executive power. We have seen, for instance, that only non-man-
cipable things were capable of transfer by tradition ; suppose, now,
that a mancipable thing were conveyed by the owner to a vendee
by tradition ; the process would not make him quiritary owner ;
he would be no better than a bona fide possessor, until by the
lapse of a year or of two years he acquired quiritary ownership by
usucapion. The praetor, however, assisted the less cumbrous mode
of alienation by treating the vendee as if he were owner ; by giving
him, if in possession, the exceptio rei venditae et traditae or plea
of sale and delivery against the vendor who sought to recover as
quiritary owner, and enabling the vendee, if dispossessed, to recover
against the quiritary owner as well as against any third person by
utilis vindicatio, called actio Publiciana, in which he would meet the
plea of quiritary ownership (exceptio dominii) by the replicatio rei
venditae et traditae or by the replicatio doli, a replication which could
not be used by a mere bona fide possessor. Bonitary ownership, or
ownership established by the praetor, when once invented, was
employed by the praetor in other innovations, which he introduced,
namely, as we shall see hereafter, in respect of res corporales of an
insolvent debtor transferred to a purchaser by universal succession
(bonorum venditio), and in respect of his testamentary and intestate
succession (bonorum possessio) : 3 § 80.
The barbarous term Bonitary (formed from the classical in bonis
esse, in bonis habere) has the authority of Theophilus, who speaks
of Sfo-norrjs ftuvirdpios, 1, 5, 4 ; he also calls bonitary ownership natural
dominion ((frwiKri bf<rnoT(ia), as opposed to statutory, civil, or quiri-
tary dominion ((wopos deo-TroTem).
Actio Publiciana was not only the remedy of the bonitary owner,
but was also applicable on the alienation of anything whatever by
a non -proprietor to an innocent alienee (bona fide possessor) in case
the latter lost possession of it.
Usucapion, as in the case of bonitary ownership, might in the lapse
of time have given the bona fide possessor plenary dominion, and, with
it, vindication in the event of a loss of possession ; but if he lost pos-
session whilst usucapion was still incomplete, he would have had no
real action (for, not being owner, he could not vindicate), if the
praetor had not allowed him to sue by the actio Publiciana, which
treated bona fide possession, that is, usucapion possession, or the
inception of usucapion, as if it were plenary dominion in respect of
every one, except the rightful owner. The latter, however, could
defend himself in this action successfully against a mere bona fide
possessor by the exceptio dominii, or bring a vindication against a
154 DE ADQVIRENDO RERVM DOMINIO [n.§§ 40-61.
bona fide possessor who retained possession, though, as we have seen,
the quiritary owner was not allowed to avail himself of these means
of protection against a person having a praetorian or bonitary title of
ownership.
§§ 52-60. An heres was either voluntarius, empowered to accept
or reject the inheritance, or necessarius, heir as matter of course,
without any such power of election. A voluntary heir was either
.in agnate entitled to succeed an intestate, or any heir, not being
a suus or necessarius heres of the testator, entitled under a will. A
necessary heir was either a slave of the testator manumitted by his
will, or a self-successor (suus heres), that is, a descendant under power
of the testator or intestate, made independent by his death, § 152. In
every case of voluntarius heres, so long as the heir had not entered
on the inheritance, any stranger was permitted to seize parts of it
and acquire property therein by usucapion. The only title (causa,
titulus) required for this acquisition was the overture or delation of the
inheritance to heres and vacancy of possession. This possession, which
Gaius (§ 52) calls pro herede (see Dig. 5, 3, 9) is more properly called
pro possessore. Cf. 4 § 144. 'Possessor, as possessor, is the occupant,
who, asked why he possesses, answers, "Because I possess," and
does not claim to be heir even mendaciously, and has no title of
possession to allege.' But according to early Roman law any person
who was allowed by the voluntary heir to remain in possession of
the inheritance for a year was considered lawfully entitled to it as
heir, bona fides on the part of a possessor being at this time im-
material for the purpose of acquiring by usucapion (Muirhead,
Roman Law, § 32). The senatusconsultum of Hadrian, referred to
in the text, § 57, did not prevent the usucapion, but made it nugatoiy
by allowing the heir to recover the hereditaments by real action
(hereditatis petitio, or the interdict Quorum bonorum, 4 § 144), just
as if the usucapion had never been completed.
Though the occupant of the vacant hereditament was called
praedo, his possession, being encouraged by the lawgiver, was not
unlawful until restitution was claimed, Savigny, § 264. This pos-
session is probably the key to an enigmatical rule in Roman law :
ipsum sibi causam possessionis mutare non posse, Dig. 41, 3, 33, 1 ;
causam possessionis neminem sibi mutare posse, Dig. 41, 5, 2, 1.
'No man can change at pleasure his title of possession.' With the
intention, it may be, of limiting the operation of possessio pro
herede, an anomalous institution of questionable expediency, the rule
declares that a person who commences his possession of a thing
in the character of a vendee from a non-proprietor, or holds it as
lessee, borrower, depositary, shall not be able, on the death of the
true proprietor, to accelerate or initiate usucapion by merely pro-
ii. §§40-61.] DE VSVCAPIONIBVS 155
fessing that he ceases to hold in his former character and proceeds
to hold as possessor pro herede or pro possessore.
Possessio pro herede was perhaps the germ of the intestate suc-
cession of next of kin or cognati, a succession, as we shall see, not
originally recognized in Eomau law ; at least, the family or next of
kin of an intestate would generally have the best chance of seizing
any movables or immovables that he left ; and perhaps it was this
equitable result, no less than the object mentioned by Gaius, § 55,
that, in the absence of a regular succession of cognati, led the public to
look on possessio pro possessore as a rational and salutary institution.
The senatuseonsultum mentioned in the text, § 57, is supposed by
some commentators to be the same as one mentioned in the Digest
(5, 3, 6), as having been passed at the instance of the Emperor
Hadrian, when Q. Julius Balbus and P. Juventius Celsus were
consuls, A. r>. 129 — hence called Sc. Juventianum. The institution
of usucapio pro herede and pro possessore, or rather the senatus-
eonsultum by which it was defeated, has left its traces in the formula,
still to be found in the Digest, of the interdict Quorum bonorum,
a remedy whereby a person who claimed either as civil heir (heres),
or as praetorian heir (bonorum possessor), established his claim to
succeed and recovered possession of the things belonging to the
inheritance. See 4 § 144. To leave these traces in the wording
of the interdict was according to Vangerow no oversight on the
part of Justinian, as although in his legislation the last remnants
of the institution of usucapio pro possessore, that is by a mala fide
possessor, had been definitely abolished ; yet usucapio pro herede, that
is, by a bona fide possessor, or one who sincerely though mistakenly
held himself to be heir, was still recognized by jurisprudence, § 320.
§ 60. For fiducia cum creditore see 1 § 114, comm., 3 §§ 90, 91,
comm. Mancipation to a friend on trust for safe custody must have
been the earliest legal form of deposit, as mancipation to a creditor
on trust to reconvey was the earliest mode of pledge or mortgage.
For precarium see 4 §§ 138-170, comm.
§ 61. The circumstances contemplated seem to be as follows:
A proprietor is debtor to the Roman people or state, and his lands
are mortgaged as security for the debt. On default of payment, the
state exercises the power of sale : if the debtor is not turned out of
possession by the purchaser (praediator) in two years he recovers his
proprietorship by usureception. It seems that the sale by the people
was merely the transfer of the mortgage ; so that, if the debtor
afterwards satisfied the purchaser, he recovered his land. Kuntze,
Excursus des Rom. Rechts, 436.
Provincial lands were not subject to Usucapion ; but a possessor
for ten years during the presence of the owner in the same province
156 DE ADQVIRENDO RERVM DOMINIO [n.§§ 40-61.
(inter praesentes), or for twenty years in his absence (inter absentes),
if he satisfied the conditions of usucapion, had, according to the
provincial edict, the plea called longi temporis praescriptio against
any action brought by the owner for recovery, and subsequently was
himself allowed to recover the land, as if he were owner of it, so
that longi temporis possessio became in later Roman law not simply
a limitation of the right of action, but a positive title analogous to
usucapion.
Usucapion required something beyond mere possession for a cer-
tain period ; and something beyond what we hereafter call Interdict
possession, 4 §§ 138-170. The conditions of possession which entitled
a possessor to appeal for the protection of his possession to the
praetor's interdict were merely that he should have de facto control
of the property, as if he were owner of it, all question of right or
title being immaterial : nor was a mala fide any more than a bona
fide possessor excluded from this protection, unless he had obtained
possession from the other party to the interdict by means of violence
(vi), or clandestinely (clam), or by his pel-mission (precario). But to
produce Usucapion (i) the person and thing to be acquired must be,
capable of quiritary ownership, and (2) it must not have been taken
by any one's theft or violence from the former owner, § 49 : so that
land not being subject to furtum was more easily acquired by
usucapion than movable property, § 50 ; (3) the possession of the
usucapient must be based on a justa causa or titulus, a ground of
acquiring ownership, such as tradition or bequest ; (4) and com-
menced with bona fides on his part, a condition which appears to
have been annexed to the law of the Twelve Tables by the inter-
pretation of the prudentes. Bona fides, in the case of titulus of
occupancy, which is an original mode of acquisition, e.g. usucapio
pro derelicto, is a mistaken belief that the thing is res nullius,
has no proprietor. In the case of derivative acquisition it is the
belief that the auctor, or person from whom the thing is derived, is
either owner or, if not owner, has a power of disposition as agent,
guardian, mortgagee, or otherwise. Vangerow, § 321. The Canon
law requires during the whole period of such prescription the bona
fides which the Civil law only requires at the inception.
Justinian remodelled the law of Usucapion, combining it with longi
temporis possessio. Cf. Inst. 2, 6. For movables he extended- the
period from one year to three years : for immovables he abolished the
distinction between Italian and provincial land, and required ten
years' possession if the parties were domiciled in the same province,
and twenty years' possession if they were not domiciled in the same
province. Further, he introduced a new usucapion (longissimi tem-
poris praescriptio), which was governed by less stringent conditions
ii. §§ 40-61.] DE VSVCAPIONIBVS 157
than the ordinary usucapion (longi temporis praescriptio). It applied
both to movables and immovables, was not vitiated by certain flaws
in the subject (res furtiva, vi possessa), and needed no support of
any titulus, but only required bona fides in its inception on the
part of the possessor, Cod. 7, 39, 8. It was completed in thirty
years.
Usucapion, particularly in this its later form, requires to be care-
fully distinguished from the Limitation of actions (temporalis prae-
scriptio) with which it has been co-ordinated by some civilians under
the name of Acquisitive, as opposed to Extinctive, Prescription. We
shall see, 4 § 110, that all actions were originally divided into tem-
porales and perpetuae, temporales being such as could only be brought
within a certain period (e.g. in the case of praetorian actions, a year)
from the time when the right of action accrued, perpetuae such as
were subject to no such limitation. Subsequently, however, even
the latter were limited, and no action could be brought after thirty
years from the nativity of the action or the time when the right of
action accrued (actio nata), Inst. 4, 12 pr. In the case of personal
actions there is no danger of confusing Usucapion and Limitation.
Usucapion implies possession, and in the case of personal actions,
or jus in personam, no such thing as possession is conceivable,
for possession only relates to res corporales. Usucapion and
the Limitation of real actions are more similar, but even here a
distinction may be recognized. Limitation is the extinction of a
right by neglect of the person entitled, by his omission to enforce
his remedy : Usucapion is the acquisition of a right by something
positive on the part of the acquirer, his strictly denned possession
for a certain time. Even extraordinary acquisitive- prescription
requires, as we have seen, bona fides in the commencement of pos-
session : no such condition is attached to Limitation or extinctive
prescription.
English law originally only recognized acquisitive prescription in the
case of easements and profits, e. g. rights of way ; for the acquisition of
which the Prescription Act, 2 and 3 Will. 4, c. 71, requires possession
for a fixed period. Moreover, since the Act for the limitation of real
actions, 3 and 4 Will. 4, c. 27, deprives a proprietor of land of his
right as well as his remedy if he omit to bring his action to recover
it within twenty years after the right accrued (a limit which by the
37 and 38 Viet. c. 57 was reduced to twelve years), the principle of
Usucapion (Acquisitive prescription) in corporeal as well as incor-
poreal hereditaments may be said to be now recognized in English
real property law, though not very distinctly.
Besides the civil titles which we have examined, two others are
mentioned by Ulpian : Singularum rerum dominia nobis adquiruntur
158 DE ADQVIRENDO RERVM DOMINIO [n. §§ 40-61.
mancipatione, traditione, in jure cessione, usucapione, adjudicatione,
lege, 19, 2.
Adjudication (for the nature of which see 4 § 42), whereby pro-
perty might be taken from one individual and vested in another
without any of the ordinary methods of conveyance, as in the
case of the award of a judex in a partition suit, may be com-
pared in its operation to the vesting orders made by the Court of
Chancery under the Trustee Acts. When trustees are disabled by
lunacy or infancy from dealing with the estates vested in them, the
Court of Chancery is empowered to make orders the effect of which
is that the estate becomes immediately vested in the substituted
trustees as effectually as if a conveyance had been duly made by the
person previously entitled to the legal estate. Another parallel is to
be found in the awards of certain commissioners acting under powers
given by act of parliament. Thus the order of the Inelosure com-
missioners for exchange and partition of land closely resembles in
subject and effect the adjudicatio of a judex n the actio finium
regundorum.
Lex is an ambiguous and miscellaneous title. It is said to include
title by caducity (caducum) under the lex Papia Poppaea, and bequest
or legacy (legatum), a title deriving its validity from the lex of the
Twelve Tables, Ulpian, 19, 17. Extending our view from res
singulae, to which Ulpian confines himself, to universitates, lex
was an apt denomination of title by will at the period when wills
required the ratification of the Cornitia Calata, 2 § 101, as at that
time testamentary dispositions were really acts of the legislature.
Title by lex in this case bears some kind of analogy to conveyances
by private act of parliament in English jurisprudence.
It may assist to clear our conception of title if we observe that
the title 'Lege' is ambiguous, and that (i) while one of its mean-
ings implies an absence of all title, (2) another denotes a miscella-
neous group of heterogeneous titles.
(i) The only case in which Law can be said in any distinctive
sense to be a cause of acquisition is privilegium or private law.
The acquisition of a right by immediate grant from the sovereign
(private act of the legislature, private act of parliament) is unlike
the acquisition of a person entitled under some general disposition
of a universal law. Acquisition by bequest or escheat is not an
acquisition by law in any pre-eminent manner, but only in the same
degree as is acquisition by mancipation or usucapion or any other
title, for all these acquisitions are equally founded on law or some legal
disposition of general application. But in acquisition by privilegium
there is, in this sense, neither title nor any general law. By a general
law is meant a universal proposition, annexing a right or duty to
ii. §§ 65-79.] ADQVISITIONES DOMINII NATVRALES 159
a title : it knows nothing of individual persons, but stops short
at classes of persons, classes, that is, defined by the title. Again,
title is, properly speaking, a contingent fact distinct from a corre-
sponding law : a fact which may occur an indefinite number of
times, and entitle, that is, invest with rights or duties, an indefinite
number of persons, in accordance with the dispositions of one and
the same unchanging law. Title, loosely and inaccurately defined
as a fact investing a person with a right, would include a privilege,
i. e. a law conferring a right immediately on a given individual
without the intervention of a fact distinguishable from the law ;
but title, properly defined as an intervening fact through which
a law confers a right mediatel}T, excludes privilege.
Whenever there is a genuine title and a general law, the title is
interposed between the general right or duty and the particular person
therewith invested, just as the middle term is interposed between the
major and minor terms of a syllogism. E.g. All persons characterized
by the fact B are invested with the right or duty A : the individual
C is characterized by this fact B ; therefore this individual is invested
with the right or duty A. A genuine law is only the major premiss,
the proposition stating the general right or duty, all B is A. The
condition, represented by the middle term, which connects or dis-
connects the right or duty with a person is the title. In a privilegium
we have no such premisses and no such middle term. The invest-
ment of the particular individual C with a general right or duty
is not in this case possible, being unwarranted by any genuine title.
(2) In Bequest and loss of a bequest on account of caducity or
ereption there is a general law and a genuine title, but the law is not
the title, any more than it is in any other mode of acquisition.
Either because these modes include fewer voluntary acts than some
closely allied modes (for instance, the legatee may acquire ownership
of the property bequeathed to him without any act of acceptance on
his part), or, for some other reason, divers modes are lumped together
under the head of acquisition by lex. The name, however, besides
being a misnomer, is merely a sink or receptacle of miscellaneous
unrelated titles, just as we shall find in the doctrine of obligations
that miscellaneous titles (variae causarum figurae) are lumped
together under the denomination of quasi-contract. As to the
displacement in the MS. of §§ 62-64 see below, p. 163.
§ 65. Ergo ex his quae dixi- § 65. Thus it appears that some
mus apparet quaedam natural! modes of alienation are based on
-iure alienari, qualia aunt ea natural la\v, as tradition, and
quae traditione alienantur ; others on civil law, as mancipa-
t quaedam chilli, nam mancipa- tion> surrender before the magis-
160 DE ADQVIRENDO RERVM DOMINIC [n. §§65-79.
tionis et in iure cessionis et
usucapionis ius proprium est
ciuium Romanoruin.
Inst. 2,1,11.
§ 66. Nee tamen ea tantum,
quae traditione nostra fiunt, |
natural! nobis ratione adqui-
runtur, sed etiam — | occupando
ideo erimus, quio- antea nul-
li|us essent; qualia sunt om-
nia quae terra mart caelo
capiuntur.
§ 67. Itaque si /eram bes-
tiam aut uolucrem aut pis[-
cem captum | eo
usque nostrum esse intellegitur,
donee nostra custodia coer-
ceatur ; cum uero custodiam
nostram euaserit et in natu-
ralem libertatem se receperit,
rursus occupantis fit, quia no-
strum esse desinit ; naturalem
autem libertatem recipere uide-
tur, cum aut oculos nostros
euaserit, aut licet in conspectu
sit nostro, difficilis tamen eius
persecutio sit. Inst. 2, 1, J2.
§ 68. In his autem anima-
libus quae ex consuetudine ab-
ire et redire solent, ueluti co-
lumbis et apibus, item ceruis
qui in siluas ire et redire so-
lent, talem habemus regulam
traditam, ut si reuertendi ani-
mum habere desierint, etiam
nostra esse desinant et fiant
occupautium ; reuertendi autem
animum uidentur desinere ha-
bere, cum reuertendi consuetu-
dinem deseruerint.
Inst. 2, 1, 14.
§ 69. Ea quoque quae ex
hostibus capiuntur naturali
ratione nostra fiunt.
Inst. 2, 1, 17.
§ 70. Sed et id quod per ad-
luuionem nobis adicitur eodem
iure nostrum fit ; per adluuio-
trate. usucapion, for these are
titles confined to citizens of Eome.
§ 66. Another title of natural
reason, besides Tradition, is Occu-
pation, whereby things previously
the property of no one become
the property of the first occupant,
as the wild inhabitants of earth,
air, and water, as soon as they are
captured.
§ 67. For wild beasts, birds, and
fishes, as soon as they are captured,
become, by natural law, the pro-
perty of the captor, but only con-
tinue such so long as they con-
tinue in his power ; after breaking
from his custody and recovering
their natural liberty, they may
become the property of the next
occupant ; for the ownership of
the first captor is terminated.
Their natural liberty is deemed
to be recovered when they have
escaped from his sight, or, though
they continue in his sight, when
they are difficult to recapture.
§ 68. In the case of those wild
animals, however, which are in
the habit of going away and re-
turning, as pigeons, and bees,
and deer, which habitually visit
the forests and return, the rule
has been handed down, that only
the cessation of the intention' of
returning is the termination of
ownership, and then the property
in them is acquired by the next
occupant; the intention of return-
ing is held to be lost when the
habit of returning is discontinued.
§ 69. Capture from an enemy
is another title of property by
natural law.
§70. Alluvion is another natural
mode of acquisition. Alluvion is
an addition of soil to land by a
ii. §§ 65-79.] ADQVISITIONES DOMINII NATVRALES 161
nem autem id uidetur adici
quod ita paulatim flumen agro
.nostro adicit, ut aestimare non
possimus quantum quoquo mo-
rn en to temporis adiciatur ; hoc
est quod uulgo dicitur per ad-
luuionem id adici uideri quod
ita paulatim adicitur, ut oculos
nostros fallat. Inst. 2, 1,20.
§ 71. Itaque si flumen partem
aliquam ex tuo praedio rescide-
rit et ad meum praedium per-
tulerit, haec pars tua manet.
Inst. 2,1,21.
§ 72. At si in medio flumine
insula nata sit, haec eorum
omnium commums est, qui
ab utraque parte fluminis prope
ripam praedia possiden£ ; si
uero non sit in medio flumine,
ad eos pertinet qui ab ea parte
quae proxima est iuxta ripam
praedia habent. Inst. 2, 1, 22.
§ 73. Praeterea id quod in
solo nostro ab aliquo aedifica-
tum est, quamuis ille suo no-
mine aedificauerit, iure naturali
nostrum fit, quia superficies
solo cedi£. Inst. 2, 1, 30.
§ 74. Multoque magis id ac-
cidit et in planta quam quis
in solo nostro posuerit, si mo-
do radicibus terrain conplexa
fuerit. Inst. 2, 1, 31.
§ 75. Idem contingit et in
/rumento, quod in solo nostro
ab aliquo satum fuerit.
Inst. 2, 1, 32.
§ 76. Sed si ab eo petamus
fundum uel aedificium et in-
pensas in aedificium uel in
seminaria uel in sementem
factas ei soluere nolimus, po-
terit nos per exceptionem doli
mali repellere, utique si bonae
fidei possessor fuerit.
Inst. 1. c.
river, so gradual that at a par-
ticular moment the amount of
accretion cannot be determined ;
or, to use the common expression,
an addition made by alluvion is
so gradual as to elude our sight.
§ 71. Accordingly a parcel of
your land swept away by a river,
and carried down to mine, con-
tinues your property.
§ 72. An island that rises in
the middle of a river is the com-
mon property of the proprietors
on both banks of the river ; if it
is not in the middle of the stream,
it belongs to the proprietors of
the nearer bank.
§ 73. Again, a building erected
on my soil, though the builder
has made it on his own account,
belongs to me by natural law ;
for the ownership of a super-
structure follows the ownership
of the soil.
§ 74. The same occurs a fortiori
when trees are planted on my land,
provided they have struck root.
§ 75. Similarly, when corn is
sown on my land.
§ 76. But if I bring an action
to recover the land or the build-
ing, and refuse to compensate the
other party for his outlay on the
building or the plantation or the
cornfield, he will defeat my action
by the plea of fraud, at any rate
if he was a bona fide possessor.
M
162 DE ADQVIRENDO RERVM DOMINIO [n. §§ 65-79.
§ 77. Eadem ratione pro-
batum est quod in chartulis
siue membranis meis aliquis
scripserit, licet aureis litteris,
meum esse, quia litterae char-
tulis siue membranis ceduntf.
itaque si ego eos libros easue
membranas petam nee inpen-
sam seripturae soluam, per ex-
ceptionem doli mali summoueri
potero. Inst. 2, 1, 33.
§ 78. Sed si in tabula mea
aliquis pinxerit ueluti ^magi-
nem, contra probatur ; magis
enim dicitur tabulam picturae
cedere. cuius diuersitatis uix
idonea ratio redditur; certe
secundum hanc regularn si me
possidente petas imaginem
tuam esse, nee soluas pretium
tabulae, poteris per excep-
tionem doli mali summoueri ;
at si tu possideas, consequens
est, ut utilis mihi actio aduer-
sum te dari debeat ; quo casu
nisi soluam inpensam picturae,
poteris me per exceptionem doli
mali repellere, utique si bonae
fidei possessor fueris. illud
palam est, quod siue tu sub-
ripuer^s tabulam siue alius,
conpetit mihi furti actio.
Inst. 2, 1,34.
§ 79. In aliis quoque specie-
bus naturalis ratio requiritur.
proincfe si ex uuis (aut oliuis
aut spicis} meis uinum aut
oleum aut frumentum feceris,
quaeritur utrum meum sit id
uinum aut oleum aut frumen-
tum, an tuum. item si ex auro
aut ar^rento meo uas aliquod
feceris, uel ex tabulis meis
nauem aut armarium aut sub-
sellium fabricaueris ; item si
ex lana mea uestimentum fece-
ris, uel si ex uino et melle meo
mulsum feceris, siue ex medi-
§ 77. On the same principle,
the writing inscribed on my
paper or parchment, even in
letters of gold, becomes mine,
for the property in the letters is
accessory to the paper or parch-
ment ; but if I sue for the books
or parchment without offering
compensation for the writing, my
action will be defeated by the
plea of fraud.
§ 78. The canvas belonging to
me, on which another man has
painted, e. g. a portrait, is sub-
ject to a different rule, for the
ownership of the canvas is held
to be accessory to the painting:
a difference which scarcely rests
on a sufficient reason. By this
rule, it is clear that if I am in
possession, and you (the painter)
claim the portrait without offering
to pay the value of the canvas, I
may defeat your claim by the plea
of fraud. But if you are in posses-
sion, the effect is that I am entitled
to an equitable action against you,
but in this case unless I offer the
price of the painting, you defeat
me by the plea of fraud, at any
rate if you are a bona fide pos-
sessor. It is certain, that, if either
you or another purloined the can-
vas, I can bring an action of theft.
§ 79. On a change of species,
also, we have recourse to natural
law to determine the proprietor.
Thus, if grapes, or olives, or
sheaves of corn, belonging to me.
are converted by another into
wine, or oil, or (threshed out)
corn, a question arises whether
the property in the corn, wine,
or oil, is in me, or in the author
of the conversion ; so too if my
gold or silver is manufactured
into a vessel, or a ship, chest, or
chair is constructed from my
timber, or my wool is made into
clothing, or my wine and honey
ii. §§ 65-79.] ADQVISITIONES DOMINII NATVRALES 163
camentis meis emplastrum uel
collyrium feceris, (quaeritur,
utrum tuum sit id quod ex meo
effeceris,y an meum. quidam
materiam et substantiam spec-
tandam esse putant, id est
ut cuius materia sit, illius et res
quae facta sit uideatur esse, id-
que maxime placuit Sabino et
(Jassio. alii uero eius rem esse
putant qui fecerit, idque ma-
xime diuersae scholaeauctoribus
uisum est; sed eum quoque cuius
materia et substantia fuerit
furti aduersus eum qui subri-
puerit habere actionem ; nee
minus aduersus eundem con-
dictionem ei conpetere, quiet
extinctae res, licet uindicari
non possmt, condici tamen f uri-
bus et quibusdam aliis posses-
soribus possunt.
Inst. 2, 1, 25.
are made into mead, or my drugs
into a plaster or eye-salve, it be*
comes a question whether the
ownership of the new product is
vested in me or in the manu-
facturer. According to some, the
material or substance is the crite-
rion ; that is to say, the owner
of the material is to be deemed
the owner of the product ; and
this was the doctrine which com-
mended itself to Sabinus and
Cassius ; according to others the
ownership of the product is in the
manufacturer, and this was the
doctrine favoured by the opposite
school ; who further held that
the owner of the substance or
material could maintain an action
of theft against the purloiner, and
also an action for damages (con-
dictio), because, though the pro-
perty which is destroyed cannot
be vindicated, this is no bar to
a condictio or personal action for
damages against the thief and
against certain other possessors.
QVIBVS ALIENAKE LICEAT VEL NON.
§ 62. Accidit aliquando, ut
qui dominus sit alienandae rei
potestatem non habeat, et qui
dominus non sit a££enare pos-
sit. Inst. 2, 8 pr.
§ 63. Nam dotale praedium
maritus inuita muliere per le-
gem luliam prohibetur alienare,
quamuis ipsius sit uel manci-
patum ei dotis causa uel in iure
cessum uel usucaptum. quod
quidem ius utrum ad Italica
tantum praecZia an etiam ad
prouincialia pertineat, dubi-
tatur. Inst. 1. c.
§ 64. Ex diuerso agnatus fu-
riosi curator rem furio|si alie-
nare potest ex lege xn tabula-
rum ; item procurator — |
§ 62. It sometimes occurs that
an owner has not a power of
alienation, and that a person who
is not owner has a power of
alienation.
§ 63. The alienation of dower
land by the husband, without the
consent of the wife, is prohibited
by the lex Julia, although the
husband has become owner of the
land by its mancipation to him
as dower, or by its surrender to
him before a magistrate, or by
his usucapion of it. Whether this
disability is confined to Italian
soil, or extends to the provinces,
authorities differ.
§ 64. Contrariwise, an agnate, as
a lunatic's curator, is empowered
to aliene the lunatic's property by
the law of the Twelve Tables;
M a
164 DE ADQVIRENDO RERVM DOMINIO [n. §§ 65-79.
est ; item creditor pignus ex | and so is a procurator that of his
pactione, quamuis eius ea res principal (when invested by his
non sit. sed hoc forsitan ideo principal with free power of ad-
uideatur fieri, quod uoluntate ministration: Inst. 2, 1, 43).
debitoris intellegitur pignus Again, a pledgee, in pursuance
alienari, qui olim pactus est, ut of a P** authorizing him to sell,
liceret creditor! pignus uendere, ma^ »hene the f^*"0**,?!*
si pecunia non soluatur. Jf not owner °,f ^e thing ; this,
T <• 2 8 1 however, may be said to rest on
s ' ' ' ' the assent of the pledger pre-
viously given in the agreement
which empowered the pledgee to
sell in default of payment.
§ 65. Tradition or transfer of possession, as we have seen, was
a natural mode of transferring ownership in such non-mancipable
things as were corporeal : in mancipable things it could only transfer
bonitary ownership. The nature of this conveyance, which belongs
to jus gentium, has been fully explained above, §§14 a-27, comm.
Fructus or produce of a thing, when they become distinct entities,
l>elong to the owner of the principal thing, unless specially acquired
from him by some one else. They may be so acquired by transfer, in
which case one act of assent may suffice as the antecedent to many
acts of prehension ; for instance, in the gathering (perceptio) of fruits
by a usufructuary. Here the taking them occurs from time to time ;
the will or intention of the owner of the principal thing was mani-
fested once for all when he created the usufruct. But in the case of
a hirer of land by mere contract (colonus) a special tradition of the
fructus by the owner in each particular case of acquisition is required.
Thus if the fructus are res nee mancipi, perception of them, with the
consent of the owner, gives him ownership : if they are res mancipi,
bona fide possession, which usucapio will ripen into ownership.
Mere severance (separatio) of fruits (fructus) from the soil or parent
substance, without any act of appropriation (perceptio), gives to the
bona fide possessor, according to Savigny, Besitz, 22 a, bona fide
possession, which will be transformed into ownership by usucapion :
according to Vangerow, § 326, it gives him immediate and plenary
ownership. Windscheid, Pandekten, § 186, notes 11 and 12, takes an
intermediate position. Cf. Inst. Just. 2, 1, 35.
If the true owner recovers his land or cattle by vindicatio, the
judex will compel a bona fide possessor who is defendant to restore
the unconsumed fruits (fructus extantes) but not to make compensa-
tion for the consumed fruits (fructus consumpti). The mala fide
possessor, on the contrary, acquires no property in the consumed
fruits, but is compelled either by the vindicatio by which the principal
thing is recovered or by a separate personal action (condictio) to
ii. §§ 65-79.] ADQVISITIONES DOMINII NATVRALES 165
restore their value ; he may likewise be compelled to restore the fructus
extantes either by the principal vindicatio or by a separate vindicatio.
He can be sued for the value of the fruits he has neglected to gather
(fructus neglecti) only in the principal vindicatio : their non-existence
prevents his being sued for them in a separate vindicatio ; and the
fact that he is not enriched by them prevents his being sued for
them in a separate condictio, Savigny, System, § 267.
§§ 66-69. Occupation gives property in a thing which previously
has no owner. Quod enim ante nullius est, id naturali ratione
occupanti conceditur, Inst. 2, 1. 12. If a thing had already an
owner, it is only after dereliction by him that it can be appropriated
by occupation. Dereliction, or renunciation of ownership, requires
both the intention to abandon it and an external action. Thus the
casting overboard of articles in a tempest to lighten a ship is not
dereliction, as there is no intention of abandoning the property in
the event of salvage, Inst. 2, 1, 48. Nor does the mere intention of
abandonment constitute dereliction of ownership without a throwing
away or removal or some other external act ; and herein dereliction of
ownership differs from dereliction of possession, which does not require
this second element. Differentia inter dominium et possessionem
haec est, quod dominium nihilo minus ejus manet qui dominus esse non
vult, possessio autem recedit ut quisque constituit nolle possidere,
Dig. 41, 2, 17. 'There is this difference between ownership and posses-
sion, that ownership continues after the will to own has ceased,
whereas possession ceases with the cessation- of the will to possess.'
§ 68. Among wild animals (ferae naturae) a distinction is to be
drawn. In those of them that are half tamed (mansuefactae), among
which are mentioned deer, peacocks, pigeons, bees, property is not
limited by strict detention, as in other wild animals, but by animus
revertendi. A migrating swarm (examen) of bees, accordingly,
would only continue to belong to the owner of the hive as long as
it continues in his sight and is easy to recapture, as it has no
intention of returning. In tame animals, e.g. dogs or geese, the
rights of the owner are not extinguished by their straying without
an intention to return. Inst. 2, 1, 12-16.
§§ 76-79. The intimate conjunction of two things, so that they
are no longer separable and restorable to their former condition,
may produce a transmutation of ownership. A separable junction,
as when two flocks of sheep are intermingled, or when a stone is
set in a ring, or when two metals are soldered together (plumbatura),
or when the grain of one man is mixed with that of another, apart
from an agreement to share in common, produces no change of
ownership. In one case, however, namely, when material has been
used in building a house on another man's land, although the pro-
166 DE ADQVJRENDO KERVM DOMINIO [n. §§ 65-79.
perty of the owner of the material continues, it is in a dormant
state since he cannot, so long as it is fixed to the land, vindicate
it, 'quia superficies solo cedit,' § 73. The Twelve Tables, however,
allowed him the actio de tigno juncto to recover double the value.
An inseparable union sometimes produces co-ownership in the
whole (communio), sometimes the exclusive ownership of one of
the parties (accessio).
When two things belonging to different owners are mixed but
neither produce a new species, nor the relation of principal and
accessory, e. g. when two similar wines or metals are mixed ; or
when a new species is produced with the consent of both owners,
as when mead is produced by mixing honey and wine, electrum by
mixing gold and silver ; then each owner loses his separate owner-
ship of a part, and becomes joint owner of the whole. Inst. 2, 1, 27.
When a new species is produced by one owner without the consent
of the other, then, according to the law as settled by Justinian, the
exclusive ownership is vested in the producer, and the other can only
obtain redress by actio in personam for the loss of his ownership.
Further, when the mixture establishes the relation of principal
and accessory, that is, when one thing loses its independent exis-
tence and becomes a part of the other (accessio), then the ownership
in the whole is vested 'in the owner of the dominant part, acces-
sorium sequitur principale ; cf. Dig. 6, 1, 23 Si quis rei suae alienam
rem ita adjecerit, ut pars ejus fieret, veluti si quis statuae suae
bracchium . . . adjecerit, dominum ejus totius rei effici . . . plerique
recte dicunt. It will sometimes be a question which part is to be
regarded as principal and which as accessory, and the solution
does not depend on their comparative value. The Eoman jurists
themselves differ sometimes, as is shown in the text, in their
application of the principle of accession, but the principle itself
seems to be that the part which maintains its previous identity
and gives the dominating character to the entire thing is principal,
while the part which is merged in the other and so ceases to have
an independent existence, is accessory, as e. g. trees of one person
planted and taking root in the land of another, are thereby entirely
incorporated in the land. So again, a fresco painted by one person
on a wall belonging to another is evidently something accessory to
the wall. The case of an independent picture is a subject of dispute
in this relation. Gaius, § 78, appears to think that it ought to be
governed by the analogy of a manuscript, where the property in the
writing follows the property in the paper, § 77. It may be said,
however, that the principle of accession does not properly apply to
a picture or to a manuscript of literary value, since they are new
creations, differing in character from the materials in which they
ii. §§ 65-79.] ADQVISITIONES DOMINII NATVRALES 167
are embodied. It was indeed finally settled by Justinian that the
property in the picture belonged to the painter, though the latter
would be bound, as in similar cases, to make good the loss suffered by
the previous owner of the canvas. Inst, 2, 1, 34, cf. Sohm. § 64 n.
The remedy of the ex-proprietor of the accessory is utilis actio,
§ 78. This appears to be a real action (utilis in rem actio), which,
as a real action implies that the plaintiff is owner, seems to mean
a Fictitious action, 4 § 34, i. e. one whose formula feigns that the
property was never divested by Accession. This may be what
Gaius means by utilis actio.
§ 79. Specification or conversion by labour of something so as to
constitute a new thing is a title which cannot without violence be
brought under either Occupatio or Accessio. Here one person con-
tributes only his labour, whereby he transforms the material or
materials belonging to another into a new product (nova species).
The Sabinians held that the product belonged (by Accessio?) to
the owner of the material, the Proculians (by Occupatio?) to the
producer of the specification or conversion. Justinian adopts an
intermediate opinion, which Gaius mentions, Dig. 41, 1,7, 7, cf. Inst.
2, 1, 25, that the product belongs to the producer, provided that
it cannot be reduced to its original substance, while if it can be it
belongs to the owner of that substance ; e. g. a gold or silver vessel
belongs to the owner of the gold or silver out of which it was made :
and provided further that the change is a genuine fabrication or
manufacture ; for instance, the mere thrashing out of corn is not
sufficient to change the ownership, and therefore the corn belongs
to the owner of the sheaves, cf. § 79 : and the mere dyeing of wool
operates no transfer of ownership to the dyer, Dig. 41, 1, 26, 3.
In the subjoined synopsis of the various titles to ownership which
have been considered the proper position of Specification is open to
controversy, but it would seem that it should be regarded as a dis-
tinct and original mode of acquisition,
Acquisition is either Derivative, that is derived by Succession from
some one else, or Original, arising independently of any one else.
Derivative acquisition depends on (i) the will of the previous
owner (alienatio, testatio), (2) the disposition of a magistrate
or judex (adjudication, addiction, execution), or (3) a direct
disposition of law (intestate succession, caducity, forfeiture).
Original acquisition is either independent of Possession or
depends on Possession.
Original acquisition independent of Possession is either the
effect of Separation or of Conjunction.
Separation is a title to property in the case of Separatio
168 DE ADQVIRENDO EERVM DOMINIO [n. §§ 65-79.
fructuum, which confers property in the fruits on the
owner of the principal thing, or on the bona fide possessor
of it, or on the emphyteuta.
Conjunction is either the conjunction of equal with equal
or the conjunction of accessory with principal.
The conjunction of equal with equal is seen in Confusio,
which produces communio or co-proprietorship.
The conjunction of accessory with principal is either of
immovable with immovable, instanced in Alluvio :
or of movable with immovable, instanced in Satio,
Plantatio, Inaedificatio :
or of movable with movable, instanced in Scriptura,
Pictura.
Original acquisition dependent on Possession is either further
dependent on Time or is not dependent on Time.
Original acquisition dependent on Possession and further
dependent on Time is seen in Usucapio and Praescriptio
longi temporis, when this latter became an acquisitive and
not simply an extinctive title.
Original acquisition dependent on Possession but inde-
pendent of Time is seen in Occupatio, or taking possession
of a res nullius, including Captio ferarum, Captio hostilis,
Inventio derelicti, Inventio thesauri.
§§ 62-64. It is conjectured that by some accidental displacement
these three paragraphs have been transposed, and that in their
proper order they should follow § 61. There seems no good reason
why they should be interposed between the titles of civil law and
the titles of natural law.
The lex Julia, relating only to Italian soil, permitted the husband
to aliene the dotal land, with the consent of the wife, but prohibited
its hypothecation, even with her consent. Justinian extended the
prohibition to provincial soil, and to alienation with the wife's
consent, Inst. 2, 8, pr.
In the time of the jurist Javolenus, who flourished under Trajan
and Hadrian, and still probably in that of Gaius, the power of sale
of a pledge, § 64, was what is known in later jurisprudence as
accidentale negotii, requiring a special agreement, Dig. 47, 2, 73, where
by an omission of the compilers the law is not brought up to date.
But in later law, as early at least as the time of Ulpian it had become
a necessary consequence of the transaction — essentiale negotii — so
that a contrary agreement is inoperative, except that it imposes a
necessity of three denunciations or demands of payment, Dig. 13, 7, 4.
ii. §§ 80-85.] PVPILLORVM ALIENATIO
169
DE PVPILLIS AN ALTQVID A SE
ALIENAKE POSSVNT.
§ 80. Nunc admonendi sumus
neque feminam neque pupillum
sine tutoris auctoritate rem
mancipi alienare posse ; nee
mancipi uero feminam quidem
posse, pupillum non posse.
Inst. 2, 8, 2.
§ 81. Ideoque si quando mu-
lier mutuam pecuniam alicui
sine tutoris auctoritate dederit,
quia facit earn accipientis, cum
scilicet joecunia res nee man-
cipi sit, contrahit obligationem.
Inst. 1. c.
§ 82. At si pupillus idem
fecerit, | quia non facit acci-
pientis s , nullam | contra-
hit obligationem ; unde pupil-
lus uindicare quidem nummos
suos potest, sicubi extent, id |
est eos £>etere 8uos ex iure
Quiritium esse-
tere potest s-
tere.
repe-
unde
de pupillo quidem quaeritur,
an num — | — quos mutuos dedit,
ab eo qui accepit, -
actione eos persequi possit,
quoniam — [ potest.
Inst. 1. c.
§ 83. At ex contrario omnes
res tarn mancipi quam nee
mancipi mulieribus et pupillis
sine tutoris auctoritate solui
possunt, quoniam meliorem
condicionem suam facere eis
etiam sine tutoris auctoritate
concessum est.
§ 84. Itaque si debitor pecu-
niam pupillo soluat, facit qui-
dem pecuniam pupilli, sed ipse
non Hberatur, quia nullam ob-
ligationem pupillus sine tutoris
auctoritate dissoluere potest,
quia nullius rei alienatio ei sine
WHETHER WARDS CAN
ALIENE.
§ 80. We must next observe,
that neither a woman nor a ward
(pupillus) can aliene a manci-
pable thing without their guar-
dian's sanction : nor can a ward
even aliene a non-mancipable
thing without such sanction,
though a woman can.
§ 81. Thus a woman lending
money without the guardian's
sanction passes the property
therein to the borrower, money
being a non-mancipable thing,
and so imposes a contractual
obligation on the borrower.
§ 82. But a ward lending money
without his guardian's sanction
does not pass the property, and so
does not impose a contractual
obligation on the borrower, he can
therefore recover back the money,
if it exists, by vindication, that is,
by claiming it as quiritary owner ;
whereas a woman can only bring
a personal action of debt. Whether
a ward can maintain an action
against the borrower in case the
money has been spent by him,
is a subject of controversy, for a
ward can acquire a right of action
against a person without the
sanction of his guardian.
§ 83. On the contrary, both
mancipable and non-mancipable
things can be conveyed to women
and to wards without their guar-
dian's sanction, because they do
not require his sanction to better
their position.
§ 84. Accordingly, a debtor
who pays money to a ward passes
the property therein to the ward,
but is not discharged of his obliga-
tion, because a ward cannot re-
lease a debtor from any liability
without his guardian's sanction, as
170 DE ADQVIRENDO RERVM DOMINIO [n.§§ 86-96.
tutoris auctoritate concessa est;
sed tamen si ex ea pecunia locu-
pletior factus sit et adhuc petat,
per exceptionem doli mail sum-
moueri potest. Inst. 1. c.
§ 85. Mulieri uero etiam sine
tutoris auctoritate recte solui
potest ; nam qui soluit, libera-
tur obliga£ione, quia res nee
mancipi, ut proxime diximus,
a se dimittere mulieres etiam
sine tutoris auctoritate possunt.
quamquam hoc ita est, si acci-
piat pecuniam ; at si non ac-
cipiat, sed habere se dicat et
per acceptilationem uelit debi-
torem sine tutoris auctoritate
Hberare, non potest. Inst. 1. c.
without such sanction he cannot
part with any right: if, however,
he is profiting by the money, and
yet demands further payment, be
may be barred by the plea of
fraud.
§ 85. A woman may be law-
fully paid without her guardian's
sanction, and the payer is dis-
charged of liability, because, as
we have just mentioned, a woman
does not need her guardian's
sanction for the alienation of a
non-mancipable thing, provided
always that she receives actual
payment : for if she is not actually
paid, she cannot formally release
her debtor by acceptation (3
§ 169) unless with her guardian's
sanction.
§ 80, cf. 1, §§ 142-154, comm., 189-193.
§§81, 82. For mutuum, see 3 § 90. If the money delivered by
a ward could be traced it was recoverable from any one by real
action (vindicatio) : if it had been consumed in bona fides a personal
action, condictio certi, would probably lie against the borrower to
recover an equivalent sum : if jt had been consumed in mala fides
a personal action, ad exhibendum, would lie to recover an equivalent
sum and damages, Inst. 2, 8, 2.
§ 85. The pupilage of women after attaining the age of twelve,
i. e. the age of puberty, had become obsolete before the time of
Justinian, and with it their incapacities of alienation.
§ 86. Adquiritur autem nobis
non solum per nosmet ipsos,
sed etiam per eos quos in po-
testate manu mancipioue habe-
mus ; item per eos seruos in
quibus usum/ruc^um habe-
mus ; item per homines liberos
et seruos alienos quos bona
fide possidemus. de quibus
singulis diligenter despiciamus,
Inst. 2, 9 pr.
§ 87. Igitur (quod) liberi
nostri quos in potestate habe-
mus, item quod serui nostri
mancipio accipiunt uel ex tra-
§ 86. We may acquire property
not only by our own acts but
also by the acts of persons in
our power, hand, or mancipium ;
further, by slaves in whom we
have a usufruct ; further, by free-
men or another's slave of whom
we are bona fide possessors ; let
us now examine these cases in
detail.
§ 87. The rights of property
which children under power or
slaves acquire by mancipation or
tradition, or claims they acquire
ii. §§86-96.] PER QVAS PERSONAS ADQVIRATVR 171
ditione nanciscuntur, siue quid
stipulentur, uel ex aliqualibet
causa adquirunt, id nobis ad-
quiritur; ipge enim qui in po-
testate nostra est nihil suum
habere potest. et ideo si beres
institutus sit, nisi nostro iussu
hereditatein adire non potest ;
et si iuberttibus nobis adierit,
hereditas nobis adquiritur pro-
inde atque si nos ipsi heredes
instituti essemus; et eonuenien-
ter scilicet legatum per eos no-
bis adquiritur. Inst. 2, 9, 3.
§ 88. Dum tamen sciamus,
si alterius in bonis sit seruus,
alterius ex iure Quiritium, ex
omnibus causis ei soli per eum
adquiri cuius in bonis est.
§ 89. Non solum autem pro-
prietas per eos quos in potestate
habemus adquiritur nobis, sed
etiam possessio ; cuius enim rei
possession em adepti fuerint, id
nos possidere uidemur; unde
etiam per eos usucapio pro-
cedit. Inst. 1. c,
§ 90. Per eas uero personas
quas in manu mancipioue habe-
nius proprietas quidem adqui-
ritur nobis ex omnibus causis,
sicut per eos qui in potestate
nostra sunt; an autem possessio
adquiratur, quaeri solet, quia
ipsas non possidemus.
§ 91. De his autem seruis in
quibus tantum usumfructum
habemus ita placuit, ut quid-
quid ex re nostra uel ex operis
suis adquirant, id nobis adqui-
ratur; quod uero extra eas
causas, id ad dominum pro-
prietatis pertineat. itaque si
iste seruus heres institutus sit
legatumue quod ei datum fue-
by stipulation, or by any other
title, are acquired for their supe-
rior ; for a person subject to power
is incapable of holding property,
accordingly if instituted heir he
must have the command of his
superior to be capable of accepting
the inheritance, and if he has the
command of the superior and
accepts the inheritance, it is
acquired for the superior just as
if the latter had himself been in-
stituted heir : and the rule that it is
the superior who acquires applies
equally in the case of a legacy.
§ 88. But it is to be noticed
that when one man is bonitary
owner of a slave and another
quiritary owner, whatever the
mode of acquisition, it enures
exclusively to the bonitary
owner.
§ 89. Not only ownership is
acquired for the superior but also
possession, for the possession of
the inferior is deemed to be the
possession of the superior, and
thus the former is to the latter
an instrument of acquiring by
usucapion,
§ 90. Persons in the hand or
mancipation of a superior acquire
ownership for him by all modes
of acquisition just as children or
slaves in his power ; whether they
acquire possession for him is a
controversy, as they are not them-
selves in his possession.
§91. Respecting slaves in whom
a person has only a usufruct, the
rule is, that what they acquire
by means of the property of the
usufructuary or by their own
labour is acquired for the usu-
fructuary ; but what they acquire
by any other means belongs to
their proprietor. According!}7",
if such a slave is instituted heir
or made legatee, the inheritance or
172 DE ADQVIRENDO RERVM DOMINIO [IT. §§ 86-96.
rit, non mihi sed domino pro-
prietatis adquiritur.
Inst. 2, 9, 4.
§ 92. Idem placet de eo qui
a nobis bona fide possidetur,
siue liber sit siue alienus ser-
uus. quod enim placuit de
usufructuario, idem probatur
etiam de bonae fidei possessore.
itaque quod extra duas istas
causas adquiritur, id uel ad ip-
sum pertinet, si liber est, uel ad
donrinum, si seruus eat.
Inst. 1. c.
§ 93. SecZ bonae fidei posses-
sor cum usuceperit seruum, quia
eo modo dominus fit, ex omni
causa per eum sibi adquirere
potest. usufructuarius uero
usucapere non potest : primum
quia non possidet, sed habet
ius utendi [et] fruendi ; deinde
quia scit alienum seruum esse.
Inst. 1. c.
§ 94. De illo quaeritur, an
per eum seruum in quo usum-
fructum habemus possidere ali-
quam rem et usucapere possi-
mus, quia ipsum non possidemus.
per eum uero quern bona fide
possidemus sine dubio et possi-
dere et usucapere possumus.
loquimur autem in utriusque
persona secundum definitionem
quam proxime exposuimus, id
est si quid ex re nostra uel ex
operis suis adquirant [id nobis
adquiritur]. Inst. I.e.
§ 95. Ex his apparet per li-
beros homines quos neque iuri
nostro subiectos habemus neque
bona fide possidemus, item per
alienos seruos, in quibus neque
usumfructum habemus neque
iustam possessionem, nulla ex
causa nobis adquiri posse, et
legacy is acquired, not for the
usufructuary, but for the owner.
§ 92. The possessor in good
faith of a freeman or a slave
belonging to another is held to
have the same rights as a usu-
fructuary ; what they acquire on
any other account than the two
we mentioned, belonging in the
one case to the freeman himself in
the other to the rightful owner.
§ 93. But after a possessor in
good faith has acquired the owner-
ship of a slave by usucapioii, since
he has thus become owner of him,
all acquisitions by the slave enure
to his benefit. A usufructuary
cannot acquire a slave by usuea-
pion, for, in the first place, he has
not possession, but only a right
of usufruct ; and in the second
place, he knows that the slave
belongs to some one else.
§ 94. It is a question whether
a slave can be an instrument of
possession and usucapion for a
usufructuary, the slave not being
himself in his possession. A slave,
undoubtedly, can be the instru-
ment of possession and usucapion
for a bona fide possessor. Both
cases are subject to the limitation
made above as to things acquired
by the slave by means of the
usufructuary's property or by his
own labour.
§ 95. It appears that freemen
not subject to my power nor in
my bona fide possession, and
slaves of other people of whom
I am neither usufructuary nor
lawful possessor, cannot under
any circumstances be instruments
of acquiring for me, and this is
ii. §§86-96.] PER QVAS PERSONAS ADQVIRATVR 173
hoc est quod uulgo dicitur per the import of the dictum that
extraneam personain nobis ad- a stranger to the family cannot
quiri non posse, tantum de be an instrument in the acquisi-
possessione quaeritur, an < per tion of anything; only in respect
extraneam} perwmam nobis of possession there is a contro-
adquiratur. Inst. 2, 9, 5. ™sj as to whether it cannot be
acquired through a stranger.
§ 96. In summa sciendum § 96. Finally, it is to be ob-
est his qui in potestate manu served that persons under power,
mancipioue sunt nihil in iure in hand, or in mancipium, cannot
cedi posse ; cum enim istarum acquire by surrender before a
personarum nihil suum esse magistrate, for, as nothing can
possit, conueniews est scilicet, belong to such persons, it follows
ut nihil suum esse in iure uindi- that the7 cannot vindicate any-
care possint. ^8 as their own before a **&'
strate.
§ 87. Manus and mancipium had ceased to exist before the time
of Justinian, and patria potestas was much reduced. The gradual
steps by which filiusfamilias acquired an independent proprietary
position have been already described, 1 § 55, comm. The reduction
of patria potestas, and the abolition of the dependent law of Agnation,
may be almost regarded (so fundamental were these institutions in
jus civile) as the abrogation of the jus civile, and the substitution
in its stead of what the Komans called jus gentium.
§ 88. The power of acquiring by the acts of a slave and the power
of manumission, so as to make a slave Latinus, accompany Bonitary,
not Quiritary, ownership, where these are separated, 1 §§ 35, 54,
3 § 166.
§ 90. It is to be noticed, as Professor Muirhead points out in his
note to this passage, that no reason is given for making a distinction
between persons in manu mancipiove and nliifamilias and slaves in
respect of the acquiring possession for their superior.
§ 94. Dig. 41, 2, 1, 8 Per eum, in quo usumfructum habemus,
possidere possumus, sicut ex operis suis adquirere nobis solet, nee ad
rem pertinet, quod ipsum non possidemus : nam nee filium.
§ 95. All Dispositions or modes of conferring either rights against
one (jus in personam), or rights against the world (jus in rem), are
divisible, as we have before mentioned, into two parcels ; an essential
portion, some mental or internal act, the Intention of the parties ;
and an evidentiary portion, the Execution of this intention, its
incorporation in some overt act. Can these elements of title be
contributed by different persons? Can the Intention of disposing,
that is, of acquiring or aliening, reside in one, and can its Execution,
its external manifestation, be delegated to a representative?
Originally, that is, under the ancient civil law, representation was
174 DE ADQVIRENDO RERVM DOMINIO [n. §§ 86-96.
only admitted when the representative was in an inferior status to
the principal, was his slave, or subject to his potestas, manus, or
mancipium, § 95. . This limitation was found to be inconvenient,
when, in the progress of Roman conquest, Roman citizens became
proprietors in remote parts of the world ; and Possession was
allowed to be acquirable by the instrumentality of extranea persona,
that is, of a person who stood in no relation of inferiority to the
acquirer, which though a doubtful point in the time of Gaius, was
finally settled by a constitution of the Emperor Severus. In a civil
solemnity, like mancipation, a man could not be represented by an
independent agent ; but when the transfer of possession (traditio)
became a mode and ultimately the universal mode of transferring
dominion, it followed that Ownership (dominium), as well as Possession,
could be acquired by the agency of libera persona, if the person making
traditio of a thing to the agent was himself owner of it, Inst. 2, 5.
The acquisition of Obligations or personal rights by brokerage of
an independent agent was less perfectly developed. In fact Roman
law adhered throughout its history to the rule that an agent could only
contract rights for himself and not for his principal, though means
were taken to circumvent this restriction as far as possible. The
process employed for this purpose was a duplication of the relation of
agency (mandatum). A as principal (dominus) appointed B his agent
(procurator). B then contracted with a third party in his own name,
and, in order to transfer the benefit of his contract to A, he ceded
to him his right of action, that is to say, B, as principal, in his turn
made A his agent (procurator in rem suam), whereby A was able to
sue in the name of B, and obtain judgement on his own account.
Finally, the praetor allowed the principal to sue immediately, with-
out an express mandate, if intention to assign was shown, by bringing
a utilis actio, 3 § 163, comm.
§ 96. We might have expected that, as those subject to potestas
can acquire for their superiors by Mancipatio, § 87, so they could also
acquire by In jure cessio, especially as the same form of words —
Hunc ego hominem ex jure Quiritium meum esse aio — was used in
Mancipatio, 1 § 119, and in Vindicatio, 4 § 16. It seems, however, that
in Mancipatio the formula could be changed to Hanc rem ex jure
Quiritium Lucii Titii domini mei esse aio, 3 § 167 ; and that a similar
modification was not admissible in in jure cessio. It follows that
an inferior (filius, qui in mancipio est, or servus) could acquire for
his superior rural servitudes, but not urban or personal servitudes.
§§ 29, 30, these being only created by in jure cessio ; not, that is to
say, as res singulae : for as parts of a rerum universitas these and all
other rights could be acquired for a superior by an inferior by making
aditio of an hereditas with the sanction of the superior, § 188 ; and
ii. §§ 97-108.] DE HEREDITATIBVS
175
even as res singulae these rights could he acquired for a superior by
an inferior by title of legatum ; that is, if they are conferred by
a testator on the inferior as legatarius, Vat. frag. 51.
As Hereditas includes Obligations (res incorporales), active and
passive, as well as Dominium (res corporalis), the consideration of
Obligation should, theoretically speaking, precede the consideration
of Inheritance ; in an elementary exposition like the present, how*
ever, no practical inconvenience is occasioned by postponing the con-
sideration of Obligations, while we gain by exhausting the subject of
jus in rem before proceeding to the examination of jus in personam.
We may remember that Hereditas, as well as Servitudes and
Obligations, was included by the Komans under the term Kes
incorporales, § 14. The whole division of rights, however, into
Res corporales and Res incorporales is unsatisfactory ; for, as we
have already noticed, it was only from confusion of thought that
Dominium was held to be Res corporalis ; for all Rights are, really,
Res incorporales.
QYIBYS MODIS PER YNIVEESITATEM EES ADQVIRANTVR.
§ 97. Hactenus tantisper
admonuisse sufficit" quemad-
modum singulae res nobis ad-
quirantur. nam legatorum ius
quo et ipso singulas res adqui-
rimus opportunius alio loco
referemus. uideamus itaque
nunc quibus modis per uniuer-
sitatem res nobis adquirantur.
Inst. 2, 9, 6.
§ 98. Si cui heredes facti
sumus, siue cuius bonorum
possessionem petierimus, siue
cuius bona emerimus, siue
quein adoptauerimus,siue quam
in manum ut uxorem receperi-
mus, eius res ad nos transeunt.
Inst. 1. c.
§ 99. Ac prius de heredita-
iibus dispiciamus quarum du-
plex condicio est : nam uel ex
testamento uel ab intestato ad
nos pertinent. Inst. 1. c.
§ 100. Et prius est, ut de his
dispiciamus quae nobis ex
testamento obueniunt.
Inst. 1. c.
§ 97. So much at present re-
specting the modes of acquiring
SINGLE rights ; for bequest by way
of legacy, another title whereby
single rights are acquired, will
find a more suitable place in a
later portion of our treatise. We
proceed to the titles whereby an
AGGREGATE of rights is acquired.
§ 98. If we become civil heirs
of anyone, or claim praetorian
succession to his property, or
purchase the estate of an insol-
vent, or adopt a person sui juris,
or receive a wife into our hand,
the whole property of those per-
sons is transferred to us in an
aggregate mass.
§ 99. Let us begin with in-
heritances, whose mode of devo-
lution is twofold, according as
a person dies testate or intestate.
§ 100. And we first treat of
acquisition by will.
176 SVCCESSIO PER VNIVERSITATEM: [IT. §§ 97-108.
§ 101. Testamentorum autem
genera initio duo fuerunt : nam
aut calatis coinitiis testamen-
tum faciebant, quae comitia bis
in anno testamentis faciendis
destinata erant, aut in procin-
ctu, id est cum belli causa arma
sumebant ; procinctus est enim
.expeditus et armatus exercitus.
alterum itaque in pace et in otio
faciebant, alterum in proelium
exituri. Inst. 2, 10, 1,
& 102. Accessit deinde ter-
• •
tium genus testamenti quod
per aes et libram agitur. qui
neque calatis comitiis neque
in procinctu testamentum fece-
rat, is si subita morte urgue-
batur, amico familiam suam,
id est patrimonium suum, man-
cipio dabat, eumque rogabat
quid cuique post mortem suam
dari uelle£. quod testamentum
dicitur per aes et libram, sci-
licet quia per mancipationem
peragitur. Inst. 1. c.
§ 103. Sed ilia quidem duo
genera testamentorum in de-
suetudinem abierunt ; hoc uero
solum quod per aes et libram
fit in usu retentum est. sane
nunc aKter ordinatur quam
olim solebat. namque olim
familiae emptor, id est qui a
testatore familiam accipiebat
mancipio, heredis locum opti-
nebat, et ob id ei mandabat
testator quid cuique post mor-
tem suam dari uellet ; nunc
uero alius heres testamento in-
stituitur, a quo etiam legato
relmquuntur, alius dicis gratia
propter ueteris iuris imitatio-
nem familiae emptor adhibe-
tur. Inst. 1. c.
§ 104. Eaque res ita agitur :
qui facit (testamentum), adhi-
§ 101. Wills were originally of
two kinds, being made either at
the comitia calata, which were
held twice a year for making
wills, or in martial array, that is
to say, in the field before the
enemy, martial array denoting
an army equipped and armed for
battle. One kind, then, was used
in time of peace and quiet, the
other by persons about to go to
battle.
§ 102. More recently, a third
kind was introduced, effected by
bronze and balance. A man who
had not made his will, either in
the comitia calata or in martial
array, being in apprehension of
approaching death, used to convey
his estate by mancipation to a
friend, whom he requested to
distribute it to certain persons in
a certain manner after his death.
This mode of testamentary dispo-
sition is called the will by bronze
and balance, because it is carried
out by the process of mancipation.
§ 103. The first two modes have
fallen into desuetude, and that
by bronze and balance, which
alone survives, has undergone a
transformation. In former times
the vendee of the estate, the
alienee by mancipation from the
testator, held the place of heir,
and received the testator's in-
structions respecting the dispo-
sition of his property after his
death. At the present day, the
person who is instituted heir,
and who is charged with the
bequests, is different from the
person who, for form's sake, and
in imitation of the ancient law,
represents the purchaser.
§ 104. The proceedings are as
follows: The testator having sum-
ii. §§ 97-108.] DE TESTAMENTIS ORDINANDIS 177
bitis, sicut in ceteris mancipa-
tionibus, v testibus ciuibus Ro-
manis pu&eribus et libripende,
postquam tabulas testament!
scripserit, mancipat alicui dicis
gratia familiam suam ; in qua
re his uerbis familiae emptor
Utitur FAMILY PECVNI^lQVE
TV A ENDO MANDATELAM CVSTO-
DELAMQVE MEA3f, QVO TV IVRE
TE8TAMENTVM FACEEE POSSIS
SECVNDVM LEGEM PVBLICAM,
HOC AEKE, et ut quidam ad-
IClunt AENEAQVE LIBRA ESTO
Mini EMPTA ; deinde acre per-
cutit libram, idque aes dat te-
statori uelut pretii loco ; deinde
testator tabulas testamenti te-
nens ita dicit HAEC ITA VT IN
HIS TABVLIS CERISQVE SCRIPTA
SVNT, ITA DO ITA LEGO ITA
TESrOR ITAQVE VOS QVIRITES
TESTIMONIVM MIHI PERHIBE-
TOTE ; et hoc dicitur nuncu-
patio : nuncupare est enim pa-
lam nominare, et sane quae
testator specialiter in tabulis
testamenti scripserit, ea uidetur
generali sermone nominare at-
que confirmare.
§ 105. In testibus autem non
debet is esse qui in potestate
est aut familiae emptoris aut
ipsius testatoris, quia propter
ueteris iuris imitationem totum
hoc negotium quod agitur te-
stamenti ordin&ndi gratia cre-
ditur inter familiae emptorem
agi et testatorem ; quippe olim,
ut proxime diximus,is qui fami-
liam testatoris mancipioaccipie-
bat heredis loco erat ; itaque re-
probatum est in ea re domesti-
cum testimonium. Inst.2, 10,9.
§ 106. Unde et si is qui in
potestate patris est familiae
emptor adhibitus sit. pater eius
moned, as is done in other man-
cipations, five witnesses, all Bo-
man citizens of the age of pu-
berty, and a holder of the balance,
and having already reduced his
will to writing, makes a pro-forma
mancipation of his estate to a cer-
tain vendee, who thereupon utters
these words : ' Thy family and
thy money into my charge, ward,
and custody I receive, and, in
order to validate thy will con-
formably to the public enactment
(the Twelve Tables), with this
ingot, and ' — as some continue —
'with this scale of bronze, unto
me be it purchased.' Then with
the ingot he strikes the scale,
and delivers the ingot to the tes-
tator, as by way of purchase-
money. Thereupon the testator,
holding the tablets of his will,
says as follows : ' This estate, as
in these tablets and in this wax is
written, I so grant, so bequeath,
so declare ; and do you, Quirites,
so give me your attestation.'
These words are called the nun-
cupation, for nuncupation signi-
fies public declaration, and by
these general words the specific
written dispositions of the testator
are published and confirmed.
§ 105. For the part of witness,
it is a disqualification to be in the
power of the purchaser of the es-
tate or of the testator, because, the
old proceeding furnishing the
model, the whole testamentary
process is supposed to be a trans-
action between the purchaser and
the testator ; and in old times, as
was just observed, the purchaser
was in the place of the heir ;
wherefore the testimony of per-
sons in the same family was re-
jected.
§106. Hence too, if the vendee
is a filiusfamilias, neither his
father nor any one in his father's
178 SVCCESSIO PER VNIVERSITATEM [n. §§ 97-108.
testis esse non potest ; ac ne is power, his brother, for instance,
quidem qui iu eadein potestate is competent to attest ; on the
•• • " • • . . -i . ! other hand if a filiusfamilias,
after his discharge from service,
make a will of his military pecu-
lium, neither his father nor any
est, uelut frater eius. sed si
films familias ex castrensi pe-
culio post missionem faciat
testamentum, nee pater eius
recte testis adhibetur nee is qui
in potestate patris est.
§ 107. De libripende eadem
quae et de testibus dicta esse
intellegemus ; nam et is testium
numero est.
§ 108. Is uero qui in pote-
state heredis aut fegatarii est,
cuiusue heres ipse aut legata-
rius in potestate est, quique in
eiusdem potestate est, acifeo
testis et libripens adhiberi po-
test, ut ipse quoque heres aut
legatarius iure adhibeantur.
sed tamen quod ad heredem
pertinet quique in eius pote-
state est cuiusue is in potestate
erit, minime hoc iure uti debe-
mus.
one in his father's power is quali-
fied to be a witness.
§ 107. The same rules apply
to the balance- holder, for the
balance-holder is reckoned as a
witness.
§ 108. Not only is a person
who is in the power of the heir
or legatee, or a person who has
power over the heir or legatee,
or a person in the same power
as the heir or legatee, capable of
being witness or balance-holder,
but the heir or legatee himself
can act in this character. How-
ever, it is advisable that as regards
the heir, and those in his power,
and the person in whose power
he is, the testator should not avail
himself of this right.
§§ 97, 98. On the death of a civis all his rights and obligations
(except those of a purely personal character, such as ususfructus and
liability for delict) were regarded as constituting a universitas juris
or undivided succession (supra, p. 126) called hereditas. The here-
ditas, in fact, was the legal personality of the deceased, and so the
successor to it, called heres, had exactly the same position in re-
spect of the entire family property as the deceased paterfamilias.
Hence he was personally liable to pay all the debts in full, as if he
had himself contracted them, cf. Sohm, § 108.
In the corresponding passage of Justinian's Institutes bonorum
emptio and conventio in manum, being obsolete, are not mentioned.
§§ 101-103. A will is thus defined by Ulpian: Testamentum
est mentis nostrae justa contestatio, in id sollemniter facta ut post
mortem nostram valeat, 20, 1. Testamentary disposition was an
interference with the rights of family succession under the law of
intestacy, which at first seemed so great an innovation as to require
the sanction of the gentes. Accordingly the will executed in the
Comitia Calata, or convocation of the gentes, was really a private
law (perhaps originally instituted as a modified form of adoption,
when a man had no children to succeed to his property) ; and even
the will in procinctu, when we remember the original identity at
ii. §§ 97-108.] DE TESTAMENTIS ORDINANDIS 179
Rome of the civil and military organization, may be regarded as the
legislative act of the curiae in military convocation. The essential
characteristic of this will was the nomination of a heres. Hence so
important became the institution of a heres to the validity of a will
in Roman law, that a Roman testament might be simply defined
as the institution of a heres.
The mancipatory will, or will by bronze and scale, probably began
to supersede the older form, which was perhaps confined to patricians,
when the Twelve Tables gave legal force to the nuncupative part of
mancipation (Cum nexum faciet mancipiranque, uti lingua nuncu-
passit, ita jus esto, Festus. ' In contract or conveyance by bronze
and balance, the oral declaration shall h'ave legal force '), and had ex-
pressly recognized in every paterfamilias, whether patrician or plebeian,
a power of testamentary disposition (Uti legassit super [familia],
pecunia, tutelave suae rei, ita jus esto. Ulpia/n, 11, 14).
The introduction of writing marks an era in mancipatory wills.
Originally, the testator gave oral instructions to the familiae emptor,
or purchaser of the family property, in the presence of the witnesses,
as to the terms on which the property was to be held by him and
distributed after the testator's death. These oral instructions, forming
the lex mancipii, or conditions of the conveyance, called nuncupatio,
served as a means, under the clauses -of the Twelve Tables above cited,
of nominating a heres. Hence a special lex curiata for this purpose
was no longer necessary, and the familiae emptor, instead of being a
kind of trustee for carrying out the testator's wishes, became a mere
formality, used simply for the purpose of making the will mancipatory.
Afterwards, forthe sakeof secirecy, the testator committed his intentions
to writing, and the nuncupation became a mere form of publication,
or general ratification of the directions contained in the tablets which
the testator held in his hand, when he executed the mancipation.
§ 105. It is an intelligible rule, that a person interested in the
validity of a will should be incompetent as a witness ; and, when
the familiae emptor was in the place of the heir, it was reasonable
to disqualify for attestation any one united in interest to him. But
when the mancipation was purely fictitious (imaginaria mancipatio,
Ulpian, 20, 2 ; imaginaria venditio, Inst. 2, 10, 1), one sesterce being
paid as the nominal price, and the imaginary vendee distinct from
the heir, the continuance of this disqualification shows the tendency
of the Romans to venerate rules after the principles on which they
were founded had ceased to operate. In the meantime the heir,
who was, strictly speaking, really interested, was competent to be
a witness. Cicero, for instance, mentions that he and Clodius were
both witnesses to a will in which they were appointed heirs, Pro
Milone, 18, 48; but in the time of Gaius, as we see by the text,
N a
180 SYCCESSIO PER VNIVERSITATEM [n. §§ 97-108.
§ 108, such attestation was at least questionable, and when Ulpian
wrote it seems to have been inadmissible. The whole law on this
subject was, however, deranged : totum jus conturbatum erat, Inst.
2, 10, 10: the transference of interest from the familiae emptor to
the heres not being accompanied by a corresponding transference of
testimonial disqualification from the relatives of the familiae emptor
to the relatives of the heres. Justinian converted the advice of Gaius
into a fixed rule of law, and disabled the heir and persons united to
Mm by the bond of potestas from giving attestation, Inst. 2, 10, 10.
Legatees retained their competency to attest.
§ 106. This statement of Gaius respecting a will of castrense
peculium is inadvertently transferred to Justinian's Institutes, 2,
10, 9, but is inconsistent with a dictum of Ulpian's in the Digest :
Per contrarium quaeri potest, an pater ejus, qui de castrensi peculio
potest testari, adhiberi ab eo ad testamentum testis possit. Et
Marcellus libro decimo Digestorum scribit posse : et frater ergo
poterit, Dig. 28, 1, 20, 2. We have here, then, a case of Antinomy
(contradictory laws) in Justinian's legislation. Vangerow, § 444, solves
the antinomy by supposing that Ulpian speaks of a will made during
service ; the Institutes, like Gaius, of a will made post missionem.
By English law, 1 Viet. c. 26, any devise or legacy to an attesting wit-
ness is void, and the evidence of the witness admissible, and no person
is incompetent to attest on account of being appointed executor.
In another form of will deriving its validity from the authority
of the praetor, the form of mancipation was dropped, and the only
authentication required was the apposition of the seals of seven
attesting witnesses. Under such a will, however, the successor could
not take the legal estate or hereditas, but only possession of the goods
or bonorum possessio, §§ 119, 120, 148.
Before the time of Justinian, a form of will had been established
deriving its validity from three orders of legislation (jus tripertitum),
the civil law, the praetorian edict, and the imperial constitutions.
In accordance with the last, the witnesses were required to sign
or subscribe their names ; in accordance with the praetorian edict
they were required to attach their seals (signacula) ; and in accordance
with the civil law, their number was required to be seven (a number
obtained by adding the libripens and familiae emptor to the five
witnesses of the mancipation), and the whole formality of attestation
and publication was required to be continuous (unitas actus), that is,
to proceed from beginning to end without interruption or inter-
position of any other business as one act. Inst. 2, 1 0, 3.
Another form of will is mentioned by Justinian as perfectly valid
at civil law, the Nuncupative will, consisting solely of an oral
declaration in the presence of seven witnesses, Inst. 2, 10, 14. A
ii. §§109-111.] DE TESTAMENTIS MILITVM
181
modification of this produced one of the most solemn forms of testa-
ment. The nuncupation was made before the Praeses provinciae,
or a judex ; and thereupon a memorandum or protocol (insinuatio) of
the testator's dispositions was made at length in the public records
(acta or gesta) of the proceedings of the governor or court. This
was called a public testament. Cod. 6, 23, 19.
By English law, 1 Viet. c. 26, only two witnesses are required to
a will, whether of real or personal estate. The will must be in
writing, signed at the end by the testator, or by some other person
in his presence and by his direction ; and such signature must be
made or acknowledged by the testator in the presence of the two
witnesses, who must be present at the same time, and who must
attest and subscribe the will in the presence of the testator.
[DE TESTAMENTIS MILITVM.]
§ 109. Sed haec diligens ob- § 109. But from these strict
seruatio in ordinandis testa- rules in the execution of a will
mentis militibus propter ni-
miam inperitiam const iiuiiom-
bus principum remissa est.
nam quamuis neque legitimum
numerum testium adhibuerint
neque uendidermi familiam
neque nuncupauerint testamen-
tum, recte nihilo minus testan-
tur. Inst. 2, 1 1 pr.
§ 110. Praeterea permissurn § 110. Moreover, they may
est iis et peregrines et Latinos make aliens and Latini (Juniani)
instituere heredes uel iis legare, their heirs or legatees, whereas
cum alioquin peregrini quidem under other wills an alien is dis-
ratione ciuili prohibeantur qualified from taking a succession
or legacy by the civil law, and
Latini by the lex Junia.
§ 1 1 1. Celibates also, whom the
lex Julia disqualifies for taking
successions or legacies, and child-
less persons whom the lex Papia
soldiers, in consideration of their
extreme ignorance of law, have
by imperial constitutions a dis-
pensation. For neither the legal
number of witnesses, nor the cere-
mony of mancipation or of nun-
cupation, is necessary to give force
to their will.
capere hereditatem legataque,
Latini uero per legem luniam.
§ 111. Caelibes quoque qui
lege lulia hereditatem legata-
que capere uetantur ; item orbi,
id est qui liberos non habent,
quos lex
(48 uersus in C perierunt]
-prohibentur hi —
(6 uersus in C legi nequeunt)
1 eius more faciant — |
|xxx annorum 1
(8 uersus in C legi nequeunt)
1 res 1 —
prohibits from taking more than
half a succession or legacy (see
§ 286), are exempt from these
incapacities under the will of a
soldier.
(2 uersus in C legi nequeunt]
182 SVCCESSIO PER VNIVERSITATEH [n.§§ 112-114.
§ 109. The military will could only be executed during actual
service, and in this period only when the soldier was in camp, not
when he was at home or on leave of absence. A will made after
the soldier's discharge from service or during his absence from camp
was governed by the same rules as the will of a civilian (paganus).
A military will, executed without the ordinary formalities, only
remained valid during a year after discharge from service. Inst.
2, 11,3.
TESTAMENTI FA-CTIO;
§ 112. — ex auctoritate dim § 112. But a senatusconsult
Hadriani senatuseonsultum under the late emperor Hadrian,
as already mentioned (1 § 1 15 a),
made coemption unnecessary, and
permitted women to make a will
on attaining 1 2 years of age, only
requiring their guardian's sanc-
tion if they were still in a state
factum est quo permissum est
! feminis etiam sine co-
emptione te|stamentum facere,
si modo non minores essent
annortim xi I, scilicet ut quae
tutela liberatae non essent,
tutore auctore testari deberent.
§ 113. Videntur ergo melio-
ris condicionis esse feminae
quam masculi ; nam masculus
minor annorum xini testa-
men turn facere non potest,
etiamsi tutore auctore testa-
mentum facere uelit, femina
uero post xn annim testa-
menti f&ciendi ius nanciscitur,
§ 114. Igitur si quaeramus an
ualeat testamentum, inprimis
aduertere debemus an is qui
id fecerit habuerit testamenti
factionem ; deinde si habuerit,
requiremus an secundum iuris
ciuilis regulam festatus sit, ex-
ceptis militibus, qui&its propter
nimiam inpeTiti&m, ut diximus,
quomodo uelint uel quomocfo
possini, permittitur testamen-
tum facere.
of pupilage.
§ 1 1 3. Women, then, are in a
better legal position than males,
for a male under 14 years of age
cannot make a will, even with
his guardian's sanction, but a
female acquires testamentary ca-
pacity as soon as she is 12 years
old. "
§ 1 1 4. Accordingly, to determine
the validity of a will, we must
first ascertain whether the testator
had testamentary capacity ; next,
if he had, whether he conformed
to the requisitions of the civil law
in its execution, with this reserva-
tion, that soldiers, on account of
their extreme ignorance of law,
as was mentioned, are allowed to
make their wills in any way they
like and in any way they can.
§ 112. On the lost leaf of the Veronese codex Gaius proceeded to
mention the classes who were incompetent to make a will. Among
these would be the filiusfamilias, who could only dispose of his
peculium castrense. Cf. Inst. 2, 12 ; Ulp. 20, 10 ; Epit. 2, 2, 1.
§ 114. Testamenti factio is a term applied, (A) to the Testator,
Testamenti factio activa ; (B) to the object of his bounty, Testamenti
ir. §§ 112-114] TESTAMENTI FACTIO 183
factio passiva ; (C) to the witnesses. Let us consider it in each of
these applications.
(A) Testament! factio activa sometimes comprehends all the con-
ditions (physical included) of testamentary capacity, and then it
excludes children below the age of puberty and lunatics : but the
proper meaning of testamenti factio is the qualification by Status for
mancipatio, and consequently for the mancipatory will : that is to
say, it is equivalent to Commercium, and therefore is ascribed to
all cives, all Latini, and all aliens w,ho have received a grant of
commercium.
To make a will, however, a testator must have not only personal
capacity, but he must also have property to leave. This latter
condition is necessarily wanting to the Filiusfamilias and to the
Latinus Junianus : in their case, therefore, Testamenti factio does
not mean capacity of being testator, but of playing some other
part in the mancipatory will ; i. e. of being heir, or legatee, or witness.
The testator's capacity is required at two periods : at the time of
making the will and at the time of the testator's death. The strict
civil law also required the continuance of capacity during the in-
terval between these dates : but the praetor disregarded any inter-
vening incapacity (capitis diminutio minima), and, notwithstanding
such an event, gave the will efficacy by granting to the heir, not
the civil hereditas (which was beyond his power), but juxta-tabular
possession (bonorum possessio juxta or secundum tabulas), §§ 145-147,
comm., Ulpian 23, 6. Dig. 37, 11, 1, 8 Exigit praetor ut is cujus
bonorum possessio datur utroque tempore jus testamenti faciendi
habuerit, et quum facit testamentum et cum moritur. . . . Sed si
quis utroque tempore testamenti factionem habuerit, medio tempore
non habuerit, bonorum possessio secundum tabulas peti poterit.
Two other cases of incapacity were cured by the principle of
postliminy and the lex Cornelia testamentaria : if a testator suffered
capitis diminutio maxima by falling into the hands of the enemy,
when he returned from captiyity his will reacquired validity by the
operation of postliminy : if he never returned his will obtained
validity by the fiction that he died a moment before his capture.
Dig. 28, 3, 6, 12 Quatenus tamen diximus ab hostibus capti testa-
mentum irritum fieri, adjiciendum est postliminio reversi vires suas
recipere jure postliminii, aut si ibi decedat, lege Cornelia confirinari.
Dig. 49, 15, 18 In omnibus partibus juris, is, qui reversus non
est ab hostibus, quasi tune decessisse videtur, cum captus est.
Ulpian, 23, 5.
The physical conditions of testamentary incapacity (infancy, lunacy)
are only critical at the date of making the will.
(B) The Honoratus or the recipient of the testator's bounty,
184 SVCCESSIO PER VNIVERSITATEM [n.§§ 112-114.
whether heres or legatarius, required testament! factio passiva, which
like testamenti factio activa meant Commercium or capacity of taking
part in mancipatio. Accordingly both a filiusfamilias and a Latinus
could be heres or legatee (for the limitation, however, of the capacity
of Latinus Junianus by the lex Junia see below). This capacity
must exist at three periods (tria tempora) : the making of the will,
the death of the testator, and the acquisition of the succession by the
heres (aditio). The interval between the making of the will and
the death of the testator was immaterial, Inst. 2, 19, 4, Dig. 28, 5,
60, 4. The interval between the death of the testator and the aditio
of the heres was material, because on the first heres institutus be-
coming incapable the inheritance would be instantaneously delated
(offered for acceptance) to the heres substitutus or to the heres ab
intestate.
The looking to the capacity of Honoratus at the date of making
the will as well as later, though apparently based on no motives of
testamentary policy, but only due to the mancipatory form of the
primitive will, which was ostensibly a mancipatio inter vivos,
i. e. a disposition taking effect in the lifetime of the mancipator,
was retained in Justinian's legislation after wills had lost their
mancipatory form.
In respect of Honoratus it is necessary to distinguish institutio
from acquisitio (aditio) ; and testamenti factio passiva, competence
for institution, from capacitas or jus capiundi, competence for
acquisition. Testamenti factio passiva was required at the date of
the making of the will ; and in its absence a disposition was deemed
to be unwritten (pro non scripto habetur) ; and the property dis-
posed of went by Accretio to the other heredes scripti. Capacitas,
in its distinctive sense, was only required at the date of acquisition ;
and in its absence the unacquired property became caducous, and
devolved in part or in whole to persons fulfilling certain conditions
or to the state, as determined by the laws of caducity.
Incapaces, or persons who, from want of capacity to take, forfeited
part or the whole of the testator's bounty, comprehended :
(1) Latini Juniani, who were made incapable by the lex Junia,
1 § 23, 2 §§ 110, 275. Of. Ulpian, 17, 1.
(2) The unmarried (caelibes) were totally, and the married but
childless (orbi) were made partially incapable by the lex Papia
Poppaea.
(3) Husband or wife (vir et uxor), who by the same law could
only take, as between one another if they had no children, one
tenth of a heritage, and another tenth for every living child by a
former marriage : further, another tenth for a common child that
lived to the day of naming (nominum dies), or as Mommsen (Staatsr.
ii. §§115-122.] BONORVM POSSESSIO TESTATI 185
3, 202) would read the MS. of Ulpian, after the ninth day (nono die),
or two tenths for two such children, but not more. In addition to
their tenth, the husband or wife who were childless might have the
usufruct of a third part, and, if they had had children, the property
in a third, Ulpian, 1, 15.
These disqualifications were not recognized in Justinian's legis-
lation : so that at that period the distinction between capacitas and
testamenti factio passiva had lost much of its importance. We find,
however, under Justinian the penalty of forfeiture (ereptio, ablatio)
for Indignitas. Indigni were persons deemed on various grounds
unworthy of the testator's bounty. The devolution of the property
intended for them followed different rules from those which governed
other cases of Incapacity. See § 151, comm.
(C) Testamenti factio was further applied to designate the quali-
fication of the witnesses to a will. This was only required to exist
at one period, the date of the execution of the will.
§ 1 1 3. By English law, the age at which a person was competent
to make a will was formerly the same as by Roman law, namely,
12 years for females, 14 years for males ; but now, by 1 Viet. c. 26,
no one is competent to make a will before attaining 2 1 years of age.
BONORVM POSSESSIO SECVNDVM TABVLAS.
§115. Non tamen, ut iure §115. The civil law, however,
ciuili uale&i testamentum, suf- is not satisfied by our observing
licit ea obseruado quam supra the requisitions hereinbefore ex-
exposuimus de familiae uendi- plained respecting mancipation,
tione et de testibus et de nuncu- attestation, and nuncupation,
pationibus.
§ 116. (Seel} ante omnia § 116. Above all things, we
requirendum est, &n institutio must observe whether the in-
heredis sollemni more facta sit ; stitution of an heir was in solemn
nam aliter facta institutione form ; for if the institution of an
nihil proficit familiam testa- heir was not in the prescribed
toris ita uenire testesque ita form> {i is unavailing that the
adhibere et ita nuncupare te- mancipation, attestation, nuncu-
stamentum, ut supra diximus. Patlon> were reSular'
& 117. Sollemnis autem in- , ,,
stitutio haec est TITIVS HERES . § , ' 1° V^'
, .n . institution is this: 'iJe litius
ESTO; sedet ilia mm conpro- heir>, The followi also
bata uidetur TITIVM HEREDEM se£ms now to be recogni/ed . * j
ESSE IVBEO; at ilia non est order that Titius be my heir ,
conprobata TITTVM HEREDEM <i wjsh Titius to be my heir'
ESSE VOLO ; sed et illae a pie- js not admitted ; and most reject
risque inprobatae suni TITIVM the following: ' I institute Titius
HEREDEM INSTITTO, item HERE- my heir,' ' I make Titius my
DEM FACIO. heir.'
186 SVCCESSIO PER VNIVERSITATEM [11. §§ 115-122.
§ 118. Obseruandum prae-
terea est, ut si mulier quae in
tutela est faciat testamentum,
tutore auctore facere debeat ;
alioquin inutiliter iure ciuili
testabitur.
§ 119. Praetor tamen si se-
ptem signis testium signatum
sit testamentum, scriptis here-
dibus secunduin tabulas testa-
menti loonorum (possmsionem)
pollicetur: (ei) si nemo sit ad
quern ab intestate iure legitimo
pertineat hereditas, uelut frater
eodem patre natus aut patruus
aut fratris filius, ita poterunt
scripti heredes retinere heredi-
tatem. nam io^em iuris est et
si alia ex causa testamentum
non ualeat, uelut quod familia
non uenierit aut nuncupationis
uerba testator locutus non sit.
§ 120. Sed uideamus an
etiamsi frater aut patruus ex-
tent, potiores scriptis heredibus
habeantur. rescripto enim im-
peratoris Antonini significatitr,
eos qui secundum tabulas testa-
menti non iure factas bonorum
possessionem petierint, posse ad-
uersus eos qui ab intestate uindi-
cant hereditatem defendere se
per exceptionem doli niali.
§ 121. Quod sane quidem ad
masculorum testamenta perti-
nere certum est ; item ad femi-
narum quae ideo non utiliter
testatae sunt, quia uerbi gratia
familiam non ue-ndiderint aut
nuncupationis uerbalocutae non
sint ; an autem et ad ea testa-
menta feminarum quae sine tu-
toris auctoritate fecerint haec
constitutiopertineat,uidebimus.
§ 122. Loquimur autem de
his scilicet feminis quae non in
legitima paren^um aut patro-
norum tutela sunt, sed [de his]
§ 1 1 8. It is also to be remem-
bered that a woman who has a
guardian must have her guardian's
sanction to make a will, otherwise
her will is invalid at civil law.
§ 119. The praetor, however,
if the will is attested by the seals
of seven witnesses, promises to
put the persons named in the will
in juxta-tabular possession, and if
there 1$ no one to take the in-
heritance by statutory right under
the rules, of intestacy, a brother
by the same father, for instance, a
father's brother, or a brother's son,
the persons named in the will are
able to retain the inheritance ; for
the rule is the same as if the will
is invalid from any other cause, as
because the familia has not been
sold or because the words of nun-
cupation have not been spoken.
§ 120. But are not the heirs
named in the will preferred even
to a brother and paternal uncle?
since the rescript of the emperor
Antoninus permits the person
named in the will who has ob-
tained juxta - tabular possession
under an informal will to repel
the claimants in intestacy by the
plea of fraud.
§ 121. This certainly applies
both to the wills of males and also
to the wills of females which are in-
formal for such faults as omission
to sell the familia or to say the
words of nuncupation: whether
the constitution applies also to
wills of females executed without
their guardian's sanction, is a
question.
§ 122. We are not speaking of
females who are the statutory
wards of their parent or patron,
but of those who are wards of the
ii. §§115-122.] BONORVM POSSESSIO TESTATI 187
quae alterius generis tutores other sort of guardian, who are
habent, qui etiam inuiti co- compellable to give their sanction;
guntur auctores fieri ; alioquin for a parent or patron can cer-
parentem et patromon sine au- tainlY not be displaced by a will
ctoritate eius facto testamento he has not chosen to sanctlon-
non summoueri palam est.
§ 1 1 7. The necessity of using formal \vords in the institution of
an heir was abolished by a, constitution of Constantius and Constans,
A. D. 339, €od. 6, 23, 15.
As to the nomenclature employed in the following exposition of
Eoman testamentary law, it must be observed that as the Koman
conception of Heres is not found in English law, so we have no legal
term corresponding to it. In the language of English jurisprudence
Heir denotes a successor to real estate, while Executor, the notion of
which is derived to some exterxt from Roman law, denotes a successor
appointed to succeed to personal property. Again Heir denotes a suc-
cessor to real estate in case of intestacy. Devisee denotes a successor
to real estate under a will.
The word Executor is not available as a translation of heres. The
Executor of English law, unless also a legatee, holds a merely onerous
office ; whereas the heres of Roman law was always, if there was any
residue, a beneficiary. The Roman heres, ip fact, united the characters
of the English Executor and residuary legatee : and the lex Falcidia
provided that the residue should as against the claims of legatus always
amount to a fourth of the testator's property. Nor is the executor, like
the heres, personally liable for the debts of the deceased beyond assets.
In translating the word Heres heir, which is conyenient from its
relation to the indispensable terms disi nherit and disinheritance, an
English reader must not be misled by false associations with Real
Property law, but must understand that it is used to signify the
Universal successor of Roman law, whether designated by will or by
the rules of intestacy.
Bequest (which in English law is, related to personalty as devise
to realty) has been used in connexion with legacies, i. e. with dis-
positions in favour of legatarius as opposed to heres ; in favour,
that is, of a person who takes a single thing or things belonging to
the testator, not his familia, that is, the Universitas of his rights and
obligations, or a fraction of this Universitas.
§§ 119, 120. The praetor only sustained a testament in spite of its
civil invalidity when the grounds of civil invalidity were want of
mere external formalities (mancipation, nuncupation), not against
more serious defects, such as preterition of self-successor. He
sustained it, however, against the preterition of suus postumus, if
suuspostumus died before the testator, Dig. 28, 3, 12.
188 SVCCESSIO PER VNIVEKSITATEM [n. §§115-122.
The praetorian succession, or right of succession introduced by the
praetor under the name of Bonorum possessio, sometimes as supple-
mentary to, and sometimes in the place of, civilis hereditas, may be
divided into testate succession and intestate succession. The latter
branch (bonorum possessio intestati) was firmly established at an
earlier period than the former (bonorum possessio secundum tabulas).
The rescript mentioned by Gaius, § 120, which is attributed by some
writers to Antoninus Pius and by others to Marcus Aurelius, as is the
more probable view, may be regarded as having definitively estab-
lished the validity of the praetorian testament, not simply when
supplementary to, but also when in opposition to, jus civile ; in other
words, a praetorian will might make a person bonorum possessor
cum re, although the inheritance was claimed by some one with a
valid civil title.
In its origin Bonorum possessio was probably only the provisional or
interimistic possession granted to one of the parties in a suit of Heredi-
tatis petitio, cf. Sohm, § 1 10. This suit was a species of Keal action
(actio in rem), and in all Real actions it is necessary to determine which
of the litigants shall have possession during the pendency of the litiga-
tion. In the earliest period, that of statute-process (legis actio), the
interim possession was called vindiciae, and the praetor who assigned
it to one of the parties was said vindicias dicere, 4 § 1 6. In making the
grant of vindiciae he was probably governed by the same rule which
afterwards prevailed when the question of interim possession was
determined by application of the Interdicts Utrubi and Uti possidetis :
that is to say he probably allowed the party in actual possession to
continue in possession. But this rule was inapplicable to the case
of Hereditatis petitio, for at the decease of the proprietor who leaves
an inheritance not one of the claimants to succeed may be in actual
possession. Here accordingly the grant was governed by different
principles : if a will, prima facie valid, was propounded, possession
was granted to the claimant under the will (bonorum possessio
secundum tabulas) : if no such will was propounded, possession was
granted to the civil heirs, the self-successor (suus heres) being eventu-
ally allowed to claim bonorum possessio unde liberi, coming before the
nearest agnates (legitimi). Then as supplementary to the civil law,
persons who were not recognized as heredes, namely persons claiming
under a praetorian will, till they were preferred by statute to agnates,
§ .120, and next cognates (bonorum possessio unde cognati), and the
wife or husband, as such (bonorum possessio unde vir et uxor), were
put in possession in default of other heirs : children (liberi), who by
emancipation had lost the character of self-successors, were never-
theless admitted to possession in the first order in preference to agnates
of the second order, just as if they had continued unemancipated
ii. §§ 123-137.] DE EXHEREDATIONE LIBERORVM 189
(bonorum possessio unde liberi). The right of provisional possession
of course corresponded to a presumptive right of definitive ownership.
Although a will was propounded, yet if a descendant of the
testator, who would have been self-successor if he had not been
emancipated, was therein pretermitted (praeteritus), i.e. not either
instituted heir or disinherited, possession was granted to such preter-
mitted descendant (bonorum possessio contra tabulas). Contra-tabular
possession did not make a will absolutely void as the passing over
of suus heres might do : if the praeteritus was an emancipated son,
although he obtained contra-tabular possession, he was bound, as we
shall see, by some of the dispositions of the will ; so that his suc-
cession was partly intestate, partly testate.
§ 122. In ancient Kome, females, even after attaining their
majority, were subject to perpetual guardianship. In the time of
Gaius, the only survival of such guardianship to which they con-
tinued really subject appears to have been that of ascendants and
patrons, cf. 1 §§ 189-193; 2 §§ 85, 112. But before the time of
Justinian even this had ceased.
DE EXHEKEDATIONE LIBEEOEVM.
§ 123. Item qui filium in
potestate habet curare clebe£,
ut eum uel heredem instituat
uel nominatim exheredet ; alio-
quin si eum silentio praeterie-
rit, inutiliter testabitur, adeo
quidem, ut nostri praeceptores
existiment, etiamsi uiuo patre
filius defunctus sit, neminem
heredem ex eo testamento exi-
stere posse, qu/a scilicet statim
ab initio non constiterit insti-
tutio. sed diuersae scholae
auctores, siquidem films mortis
patris tempore uiuat, sane in-
pedimento eum esse scriptis
heredibus et ilium ab intestato
heredem fieri confitentur ; si
uero ante mortem patris inter-
ceptus sit, posse ex testamento
hered^afem adiri putant, nullo
iam filio inpedimento ; quia
scilicet existimant (mm) sta-
tim ab initio inutiliter fieri
testamentum filio praeterito.
Inst. 2, 13 pr.
§ 123. Moreover, a testator who
has a son in his power must take
care either to institute him heir or
to disinherit him individually, for
passing him over in silence invali-
dates the will. So much so, that
according to the Sabinians, even
if the son die in the lifetime of
the father, no one can take as
heir under the will on account of
the original nullity of the insti-
tution. But the followers of the
other school hold that although
the son, if alive at the time of
his father's death, bars the heirs
mentioned in the will and takes
as self-successor by intestacy, yet,
if the son die before the father,
the heirs under the will may
succeed, the son being no longer
in their way, because according to
this view the will was not void
ab initio by his silent preter-
mission.
190 SVCCESSIO PER VNIVERSITATEM [n. §§ 123-137.
§ 124. Ceteras uero liberorum
personas si praeterierit testator,
ualet testamentum (sed} prae-
teritae istae personae scriptis
heredibus in partem adcrescunt,
si sui heredes sint. in uirilem,
si extranei, in dimidiam. id est
si quis tres uerbi gratia filios
heredes instituerit et filiam
praeterierit, filia adcrescendo
pro quarta parte fit heres, et ea
ratione idem c'onsequitur, quod
ab intestato patre mortuo habi-
tura esset ; at si extraneos ille
beredes instituerit et filiam
praeterierit, filia adcrescendo
ex dimidia parte fit heres.
quae de filia diximus, eadem
et de nepote deque omnibus
liberorum personis seu inascu-
lini seu /eminini sexus dicta
intellegemus. Inst. 1. c.
§ 125. Quid ergo est? licet
eae secundum ea quae diximus
scriptis heredibus dimidiam
partem detrahan-t, tamen prae-
tor eis contra tabulas bonorum
possessionem promittii, qua ra-
tione extranei heredes a tota
hereditate repelluntur et effi-
ciuntur sine re heredes.
sf* •§ 1^6. Et hoc iure utebamur,
quasi nihil inter Feminas et
masculos interesset ; sed nuper
imperator Antoninus signifi-
cauit rescripto suas non plus
nancisci feminas per bonorum
possessionem, quam quod iure
adcrescendi consequerentur.
quod in emancipatarum quoque
persona obseruandum eat, ut
hae quoque, quod adcrescendi
iure habiturae essent, si in po-
testate fuissent, id ipsum etiam
per bonorum possessionem ha-
beant.
§ 127. Sed siquidem filius a
§ 124. By the pretermission of
other self-successors a will is not
avoided, but the omitted persons
come in to share with the heirs
named in the will, taking an
aliquot part if the latter are self-
successors, a moiety if they are
strangers. Thus if a man has
three sons and institutes them
heirs, saying nothing of his
daughter, the daughter comes in
as co-heir and takes a fourth of
the estate, being entitled to the
portion which would have de-
volved on her by intestacy : but
when the instituted heirs are
strangers, the daughter, if passed
over, comes in and takes a moiety.
What has been said of the
daughter applies to the son's
children, male and female.
§ 125. But though a female
according to this statement of
the law only deprives the heirs
under the will of a moiety, the
praetor promises to give her
contra-tabular possession, so that,
if strangers, they lose the whole,
and become heirs without taking
anything.
§ 126. And this was once the
law, and there was no distinction
between males and females ; but
the Emperor Antoninus has re-
cently decided by rescript that
female self-successors shall not
take more by contra-tabular pos-
session than they would by
coming in as co-heirs at civil law,
by right of accrual. And the
same rule applies to emancipated
daughters, that is, they obtain by
contra-tabular possession the same
shares as they would have ob-
tained as co-heirs by right of
accrual if they had not been
emancipated.
§ 127. A son must be disin-
IT. §§ 123-137.] DE EXHEREDATIONE LIBERORVM 191
patre exheredetur, nominatim
exhered&ri debet, ; alioquin non
uidetur exheredari. nomina-
tim autem e^heredari uidetur,
siue ita exheredetur TinVs FI-
LIVS MEVS EXHEE.ES ESTO,
ita FILTVS MEVS EXHEKES ESTO,
non adieCto proprio nomine.
Inst. 2, 13,1.
§ 128. Ceterae uero liberomm
personae uel femini sexus uel
masculini sajtis inter ceteros
exheredantur, id est his uer-
})is GETEBI OMNES EXHEREDES
SVNTO, quae uerba - .post
injstitutionem heredum adici
solent. sed hoc ita — |.
Inst. 1. c.
§ 129. Nam praetor omnes
uirilis sexus liberorum perso-
nas, | id est nepotes quoque et
pronepotes - j - 1 - 1.
§ 130. Postumi quoque liberi
uel heredes institui debent uel
exheredari.
§ 131. Et in eo par omnium
condic^o est, quod (ety in filio
•postumo et in quolibet 'ex ceteris
liberis siue feminini seafus
siue -masculini praeterito ualet
quidem testamentum, sed po-
stea agnatione postumi siue
postumae rumpitur, et ea ra-
tione totum infirm&iur. ideo-
^ue si mulier ex qua postumus
aut postuma, speraba^r abor-
tum fecerit, nihil inpedimento
est scriptis heredibus ad here-
ditatem adeundam. Inst. 1. c.
§ 132. Sed feminini quidem
sexus personae uel nominatim
uel inter ceteros exheredari
solent, dum tamen si inter
herited individually ; otherwise
the disherison is invalid. In-
dividual disherison may be ex-
pressed in these terms : Be Titius
my son disinherited : or in these :
Be my son disinherited, without
inserting his name.
and all
may be
§ 128. Other male
female self-successors
sufficiently disinherited inter
ceteros thus : Be the remainder
disinherited, which words usually
follow the institution of "the heir :
this, however, is only the rule of
the civil law.
§129. For the Praetor requires
all male self-successors, sons,
grandsons, greatgrandsons, to
be disinherited individually, al-
though he permits females to
be disinherited in an aggregate
(inter ceteros), and, failing such
disherison, promises them the
contra-tabular succession.
§ 130. Children born after the
making of the will must either be
instituted heirs or disinherited.
§ 131. And in this respect all
stand in the same position, that
if a son or any other child, male
or female, born after the making
of the will, be passed over in
silence, the will is originally valid,
but subsequently rescinded and
totally avoided by the birth of the
child ; so that if the woman from
whom a child was expected have
an abortive delivery, there is
nothing to prevent the heirs
named in the will from taking
the succession.
§ 132. Female self-successors
born after the making of the will
may be disinherited either indi-
vidually or inter ceteros, with
192 SVCCESSIO PER VNIVERSITATEM [n. §§ 123-137.
ceteros exheredentur, aliquid
eis legetur, ne uideantur per
obliuioneia. praeteritae esse.
masculini uero sexus person&s
placuit non aliter recte exAere-
dari, quam si nominatim ex-
heredentur, hoc scilicet modo
QVICVMQVE MIHI FILIVS GENI-
TVS FVEBIT _EX|HEBES ESTO.
Inst. 1. c.
§ 132 a. 1 potest u 1 —
(4 uersus in C legi nequeunt)
-agat-
§ 133. Postumorum autem
loco sunt et hi qui in sui here-
dis | locum succedendo quasi
agnascendo fiunt parentilous
sui heredes. ut ecce si filium
et ex eo nepotem ne\piemue in
•potestate habeam, quia filius
gradu praecedit, \ is solus iura
sui heredis habet, quamuis ne-
pos quo\que et neptis ex eo in
eadem potestate sint ; sed si
filius meus me uiuo moriatur,
aut qualibet ratione exeat de
potestate mea, incipit nepos
neptisue in eius locum succe -
dere, et eo modo iura suorum
heredum quasi agnatio\ne nan-
ciscuntur. Inst. 2, 13, 2.
§ 134. Ne ergo eo modo
rumpatur mihi t,e\sifimentum,
sicut ipsumjilium uel heredem
mstituere uel | exheredare de-
beo, ne non iure faciam testa-
mentum, ita et we|potem ne-
ptemue ex eo necesse est mihi
uel heredem instituere uel ex-
heredare, ne forte, me uiuo filio
mortuo, succedendo in locum
eius nepos neptisue quasi agna-
tione rumpat testamentum ; id-
this proviso, that if they are
disinherited inter ceteros, some
legacy must be left them in order
that they may not seem to have
been pretermitted through forget-
fulness. Male self -successors, sons
and further lineal descendants,
are held not to be duly disin-
herited unless they are disin-
herited individually, thus: Beany
son that shall be born to me dis-
inherited.
§ 133. With children born after
the making of the will are classed
children who by succeeding to
the place of self-successors become
subsequent self-successors like the
afterborn. For instance, if a tes-
tator have a son, and by him a
grandson or granddaughter under
his power, the son being nearer
in degree alone has the rights of
self-successor, although the grand-
son and granddaughter are
equally in the ancestor's power.
But if the son die in the lifetime
of the testator, or by any other
means pass out of the testator's
power, the grandson and grand-
daughter succeed to his place,
and thus acquire the rights of
self-successors to the testator just
as if they were children born
after the making of the will.
§ 134. To prevent this subse-
quent rupture of my will, just
as a son must be either instituted
heir or disinherited individually
to make a will originally valid,
so a grandson or granddaughter
by a son must be either insti-
tuted heir or disinherited, lest
if the son die in the testator's
lifetime the grandson and grand-
daughter should take his place and
rupture the will in the same way
as if they had been children born
ii. §§ 123-137.] DE EXHEREDATIONE LIBERORVM 193
que lege lunia Vellaea prouisum
est, in qua simul exheredationis
modus notatur, ut uirilis sexus
(postumiy nominatim, femi-
nini uel nominatim uel inter
ceteros exheredentur, dum ta-
men iis qui inter ceteros exhe-
redantur aliquid legetur.
I Inst. 1. c.
§ 135. jE'mancipatos liberos
iure ciuili neque heredes insti-
tuere neque exheredare necesse
est, quia non sunt sui heredes ;
sed praetor omnes tain feminini
quam masculini sexus, si here-
des non instituantur, exhere-
dari iubet, uirilis sexus womi-
natim, feminini uel nominatim
uel inter ceteros ; quodsi neque
heredes instituti fuerint neque
ita ut supra diximus exhere-
dati, praetor promittit eis con-
tra tabulas bonorum posses-
sionem. Inst. 2, 13, 3.
§ 135 a. In potestate patm
non sunt qui cum eo ciuitate
Romana donati sunt nee in ac-
cipienda ciuitate Romana pater
petiit, ut eos in potestate habe-
re£, aut, si petiit, nou inpetrauit,
nam qui (m) potestatem patris
ab imperatore rediguntur nihil
diffe|runt a .
§ 136. Adoptiui filii quamdiu
manent in adojptione natura-
lium loco sunt ; emancipati
uero (a) patre adoptiuo neque
iure ciuili neque quod ad edi-
ctum praetoris pertinet, inter
liberos numerantur.
Inst. 2, 13,4.
§ 1 37. Qua ratione accidit ut
ex diuerso quod ad naturalem
parentem pertinet, quamdiu
quidem sint in adoptiua familia,
extraneorum numero habean-
tur ; si uero emancipati fuerint
after the execution of the will.
The lex Junia Vellaea allows this
and directs them to be disin-
herited like children born after
a will is executed, that is to say,
males individually, females either
individually or inter ceteros, pro-
vided that those who are disin-
herited inter ceteros receive some
legacy.
§ 135. Emancipated children
by civil law need neither be
appointed heirs nor disinherited
because they are not self-suc-
cessors. But the Praetor requires
all, females as well as males,
unless appointed heirs, to be
disinherited, males individually,
females either individually or
inter ceteros, and if they are
neither appointed heirs nor dis-
inherited as described, the Praetor
promises to give them the contra-
tabular possession.
§ 1 35 a. Children who are made
Roman citizens along with their
father are not subject to his
power, if at the time he either
omitted to petition for, or failed
to obtain, a grant of patria potes-
tas : for those who are subjected to
the father's power by the emperor
differ in no respect from those
under power from time of birth.
§ 136. Adoptive children, so
long as they continue in the
power of the adoptive father,
have the rights of his natural
children: but when emancipated
by the adoptive father they
neither at civil law nor in the
Praetor's edict are regarded as
his children.
§ 137. And conversely in
respect of their natural father as
long as they continue in the adop-
tive family they are reckoned as
strangers : but when emancipated
by the adoptive father they have
194 SVCCESSIO PER VNIVERSITATEM [n.§§ 123-137.
|_ d «
ab adoptiuo patre, time inci- the same rights in their natural
plant in ea causa esse qua futuri family as they would have had
essent, si ab ipso natural! patre if emancipated by their natural
{emancipati} fuissent. father (that is, unless either in-
Inst. 1. c. stituted heirs or disinherited by
him, they may claim the contra-
tabular succession).
§ 123. The praeterition of suus heres, another circumstance which
as well as testamenti factio affected the validity of a will, was at civil
law critical both at the time of making the will and at the time of
the testator's death and in the interval : but in later times this
defect of a will was healed by the praetor, who granted juxta-tabular
possession if the defect only existed at the first and third period,
Dig. 28, 3, 12 pr., so that practically the existence of a pretermitted
suus heres at the time of the testator's death was alone important.
The necessity of disinheriting a suus heres is grounded on the
principle of primitive law, that the child is co-proprietor with the
parent: hence, unless something occurs to divest the child of his
property, he will simply become sole proprietor by survivorship on
the death of his father. Dig. 28, 2, 11, ''In self-succession we have
a still more striking instance of an unbroken continuity of dominion,
for there appears to be no vesting by it of new property by inheritance,
but the heir is deemed to have been previously proprietor even during
the lifetime of the father. Hence the names filiusfamilias and pater-
familias imply a similar kind of legal relation to the patrimony, though
one is parent and the other child. Therefore the death of the parent
occasions no acquisition of new property by inheritance, but only an
increased freedom in the administration of already existing property.
Hence, even in the absence of testamentary institution, a self-suc-
cessor is proprietor : and it is no objection to this, that a parent has
the power of disinheriting a self-successor, for he also had the power
of putting him to death.'
The characteristic of the Roman will that it grounded a Universal
succession (unlike the English will which may be a merely Partial
definition of the succession), which is expressed in the maxim,
Nemo pro parte testatus, pro parte intestatus decedere potest, had
its historic origin, not probably in a perception of its manifold
utility, but in the primitive form of the will — a proposal, perhaps in
the form of an adoption, laid before the legislative assembly for its
sanction, § 101. The assembly could no more judge of the justice
of a proposed arrangement without having laid before it the whole
plan of succession than it could judge of the fairness of a contract by
inspection of a single paragraph. It could not therefore allow the
testator merely to lay before it certain partial modifications of the
ii. §§123-137.] POSTVMI SVI 195
intestate succession and leave the rest of his inheritance to follow the
general rules of intestacy, without further informing the assembly
of their operation. Nor were the testamentary powers, conferred by
the Twelve Tables, on which the mancipatory will was founded, in-
tended to be used so as to defeat the claims of sui heredes (Muirhead,
Koman Law, § 32). These considerations involve the rules respecting
the effect of Praeteritio. If the testator's dispositions were valid
in spite of Praeteritio, he would have it in his power to commit
a fraud upon the assembly by suppressing some element that was
material to enable them to form a judgement. Accordingly Prae-
teritio was made to defeat itself, in the case of the son by nullification
(inutilitas), in the case of other issue by Accretio, § 124. However,
although by the Civil law Praeterition avoided a will and was not cured
by the death of Praeteritus before Testator, yet Praetorian law only
regarded the date of Testator's death, and, if no Praeteritus was then
existent, counteracted the nullity of the will by Juxta-tabulation.
After the introduction of the mancipatory will the fraud against
the legislature would cease to be a motive for the rule requiring the
testator to define a Universal succession ; but the rule was retained for
the sake of continuity and in order to force the testator to have before
his mind a clear and systematic view of his intentions by requiring
their simultaneous expression in a single act. It secured the after-
born from oblivion and protected the son who was falsely supposed
to be dead from the consequences of the testator's error. At the
latest period the use of Codicils permitted to a certain extent the
partial and fragmentary disposition of a patrimony, but this was not
extended to the principal point, the heredis institutio. Ihering, § 53.
§ 124. Justinian abolished this accretion and equalized the sexes,
enacting that the pretermission of any suus heres or sua heres should
absolutely vacate a will, and entitle to bonorum possessio contra
tabulas, like the pretermission of the son, Cod. 6, 28, 4 ; Inst. 2, 13, 5.
§ 127. Justinian abolished this distinction and required that all
sui heredes should be disinherited individually like the son, ibid.
§ 130. Afterborn children (postumi), that is, children born after
the making of a will, are uncertain persons, and, by the general rule
that uncertain persons cannot be instituted or disinherited (incerta
persona heres institui non potest, Ulpian 22, 4), ought to be incapable
of institution or disinheritance, and, therefore, if they are sui heredes,
would necessarily invalidate a will, because every will is informal
when there exists a suus heres who is neither instituted nor dis-
inherited. If the suus heres was born in the lifetime of the testator,
the revocation of the will would not be an irremediable evil, because
the testator would still have it in his power to make another will,
and accordingly in this case the civil law left the general rule to
O 2,
196 SVCCESSIO PER VNIVERSITATEM [n. §§ 123-137.
operate. But if the suus heres were born after the death of the
testator, the evil would be irreparable, and the testator would die
intestate. To prevent this, the civil law made an exception to the
rule that an uncertain person cannot be instituted or disinherited,
and permitted the institution or disinheritance of any suus heres who
should be born after the death of the testator : and on the authority
of the celebrated jurist Aquilius Gallus, the inventor of a form of
acceptilation (3 § 170), this power was extended to the institution or
disinheritance of any afterborn grandchild of the testator whose
father should die in the interval between the making of the will and
the death of the testator. Dig. 28, 2, 29 pr. Gallus sic posse
institui postumos nepotes induxit : Si films meus vivo me morietur,
tune si quis mihi ex eo nepos sive quae neptis post mortem meam in
decem mensibus proximis, quibus filius meus moreretur, natus nata erit,
heredes sunto. ' Gallus Aquilius introduced the institution of after-
born grandchildren in the following manner : If my son die in my
lifetime, then let any grandson or granddaughter by him who may be
born after my death within ten months after the death of my son, be
my successor.' Such grandchildren are called Postumi Aquiliani.
In respect of the suus heres born after the making of the will but
in the lifetime of the testator, the case which the civil law left to the
operation of the general rule, it might certainly be sometimes possible
to make a new will after his birth, but it might sometimes be impossible
or highly inconvenient; and accordingly the lex Junia Vellaea, which
was probably passed at the close of the reign of Augustus, in its first
chapter permitted such sui heredes, being children of the testator, and
also grandchildren of the testator born after their father's death in the
lifetime of their grandfather, to be instituted or disinherited. Such
children and grandchildren were called Postumi Vellaeani primi
capitis. In its second chapter it permitted the institution or dis-
inheritance of another class of uncertain persons, viz. quasi-afterborn
children (postumorum loco) ; grandchildren, for instance, who were
born before the making of the will, but whose acquisition of the
character of sui heredes by the decease of their father is subsequent
to the making of the will.
Such grandchildren are called Postumi Vellaeani secundi capitis.
Besides the Postumi Aquiliani, the Postumi Vellaeani primi
capitis and the Postumi Vellaeani secundi capitis, the jurist Salvius
Julianus, who systematized the Edict, established the validity of the
institution or disinheritance of a fourth class, intermediate between
the Postumi Vellaeani of the first and second chapter: grandchildren,
namely, who, like the Vellaeani of the first chapter, were born after
the making of the grandfather's will, but who, like those of the
second chapter, were born before the death of their father. Such
ii. §§ 123-137.] POSTVMI SVI 197
grandchildren are not sui heredes to their grandfather at their birth,
but only by succession, that is by the subsequent death of their
father, like those of the second chapter, Dig. 28, 2, 29, 15.
The following is a conspectus of the different kinds of Postumi
sui, i. e. descendants who after the making of a will come into the
immediate power of a testator, whether (A) children or (B) grand-
children : to remoter descendants analogous principles will apply.
(A) Children are either
(a) Veritably afterborn, that is to say born after their father has
made his will, whether after their father's decease, in which case
the civil law treated them as certae personae, or in their father's
lifetime, in which case they form a subdivision of Velleiani primi
capitis :
(6) Or quasi-afterborn (loco postumorum), i. e. quasi-sons or quasi-
daughters by adrogatio, adoptio, legitimatio, in manum conventio.
(e) Another quasi-afterborn is the child who falls under the
immediate power of his soldier father, that is, becomes his suus
heres, in consequence of the death of his grandfather, in whose
power he previously was, after his father had made a will of castrense
peculium. Dig. 28, 2, 28, 1.
(B) Afterborn grandchildren who, as self-successors to their grand^
father, require institution or disinheritance in his will fall into four
classes, differentiated by the order of priority in which certain events
occur, as hereunder indicated :
POSTUMI AQUILIANI,
Will of grandfather : Death of father : Death of grandfather :
Birth of grandchild.
POSTUMI VELLAEANI PRIMI CAPITIS,
Will of grandfather : Death of father : Birth of grandchild : Death
of grandfather.
POSTUMI SALVIANI,
Will of grandfather : Birth of grandchild : Death of father : Death
of grandfather.
POSTUMI VELLAEANI SECUNDI CAPITIS,
Birth of grandchild : Will of grandfather : Death of father : Death
of grandfather.
The last two cases depend on the principle of successio. The
grandchild is at birth in the power of his grandfather, but is not his
suus heres, so long as there is an intervening ascendant — the father —
in the same power. On the death of the intervening ascendant the
grandchild is said to succeed to his place, and becomes by such
succession suus heres to his grandfather.
198 SVCCESSIO PER VNIVERSITATEM [IT. §§ 123-137.
The afterborn stranger, though incapable at civil law of being
appointed heir (§ 242), was relieved by the praetor who gave him
the juxta-tabular possession. Justinian gave him a civil title, Inst.
3, 9 pr.
§ 132. To the necessity of leaving some legacy to the disinherited
afterborn sua heres (and not, as Blackstone suggests, to the querela
inofficiosi) we may perhaps attribute the vulgar error in England
of the necessity of leaving the heir one shilling in order to cut him
off effectually. The querela inofficiosi testamenti was a process by
which a will formally valid could be either totally or partly upset
at the instance of certain near relations on the ground that the
claims of natural affection had been disregarded by the testator.
The querela inofficiosi was not barred by any legacy, however slight,
being left to such relation, but only by giving him one fourth of his
intestate portion (§ 152, comm. ; Sohm, § 113. For the changes
which Justinian made in the law on this subject see Inst. 2, 1 8, 1 , 2 ;
Novella, 18, 1, and 115). Thus even a legacy left to an afterborn
sua heres would be unavailing1 to save the will from being inoffi-
ciosum, unless it amounted to one fourth of her share by descent.
If no legacy at all were left her, the will would be informal and
absolutely void as against her, unless she was disinherited ; if less
than a fourth of her share were left, the will would not be abso-
lutely void but voidable, i e. liable to be altogether or in part over-
thrown if she chose to impeach it as inofficiosum.
§ 135. The Praeteritio of a descendant who is suus heres to
the testator or, but for emancipation, would be suus heres, entitles
the descendant to bonorum possessio. If the praeteritus is films
suus heres, the will is absolutely void and contra-tabular posses-
sion is an intestate succession : but if the praeteritus is emanci-
patus, the effect of contra-tabular possession is to divide the
inheritance between the praeteritus and other descendants who were
instituted heirs, excluding both instituted strangers and disinherited
sui heredes.
Contra-tabular possession might be claimed either by the prae-
teritus himself, or by any of the instituted sui heredes. For if an
instituted heir took less by his institution than he would by this
partial intestacy, it would be his interest to claim contra-tabular
possession, commisso per alium edicto, 'the edict having been
brought into operation by another,' viz. by another descendant, who
had been pretermitted.
The portions of the will that remained in force were :
(i) The exheredations : for such of the liberi as were duly dis-
inherited continued, as was mentioned, excluded from the inheri-
tance :
ii. §§ 138-146.] Q. M. TESTAMENTA INFIRMENTVR 199
(2) The pupillary substitutions, the nature of which will hereafter
(§ 179) be explained :
(3) Legacies given to certain conjunctae personae, e. g. legacies
to ascendants or descendants of the testator, or a bequest to the
wife of the dower which she had brought to her husband. If, in-
stead of making the conjuncta persona a legatee, the testator had
given his bounty in the form of a portion of the inheritance in which
the conjuncta persona was instituted heir, such institution continued
valid. The validity, however, of such legacies and institutions was
by a constitution of Antoninus Pius, Dig. 37, 5, 7, and 8 pr. sub-
jected to this limitation, that all the conjunctae personae together
could not take more than a virilis portio, i. e. they were not entitled
to more than fell to the lot of each contra-tabulant or claimant of
contra-tabular possession; with this further proviso, that any con-
juncta persona who is instituted heir of the inheritance in a portion
of the heritage may retain as much thereof as he would have obtained
by claiming contra-tabular possession, cf. Koby, vol. i, p. 250.
The partial intestacy produced by contra-tabular possession shows
that the rule which we have already quoted, nemo pro parte testa-
tus pro parte intestatus decedere potest, must be taken with some
reservation. Although a testator cannot voluntarily dispose of only
part of his heritage, such partial disposition may be introduced
against the testator's intention by the operation of law. The signi-
ficance of the rule is principally this : that if a testator only
names for a certain fraction of the inheritance, or if the fraction in
which one of several heirs is instituted lapses by his decease before
the testator's death, the portion which was undisposed of or lapsed
does not devolve, as it would in English law, to the heirs-at-law or
persons entitled by intestacy, but goes by accrual (accretio) to those
to whom the remainder of the inheritance is left.
QVIBVS MODIS TESTAMENTA INFIRMENTVR.
§138. Si quis post factum §138. If after making his will
testamentum adoptauerit sibi a man adopts as son either a
filium aut per populum eum person sui juris by means of the
qui sui iuris est, aut per prae- people (in comitia) or one sub-
torem eum qui in potestate Jecfc to the Power of an ascendant
parentis fuerit, omni modo by means of the Praetor, his will
testamentum eius rumpitur js mevitably revoked as it would
quasi agnations sui heredis. be1fby the subse<iuent birth of a
List 2, 17,1. self-successor'
§ 139. Idem iuris est si cui § 139. The same happens if
post factum testamentum uxor after making his will the testator
in manum conueniat, uel quae receives a wife into his hand, or
in manu fuit nubat ; nam eo marries a person who is in his
200 SVCCESSIO PER VNIVERSITATEM [n. §§ 138-146.
modo filiae loco ease incipit et
quasi sua.
§ 140. Nee prodest siue haec
siue ille qui adoptatus est
in eo testamento sit institu-
tus institutaue ; nam de ex-
heredatione eius superuacuum
uidetur quaerere, cum testa-
menti faciendi tempore suorum
heredum numero non fuerit.
§ 141. Filius quoque qui ex
priina secundaue mancipatione
manumittitur, quia reuertitur
in potestatem patriam, rumpitf
ante factum testamentum ; nee
prodest, (si) in eo testamento
heres institutus uel exheredatus
fuerit.
§ 142. Simile ius olim fuit
in eius persona cuius nomine
ex senatusconsulto erroris
causa probatur, quia forte ex
peregrina uel Latina quae per
errorem quasi ciuis Romana
uxor ducta esset natus esset ;
nam siue heres institutus esset
a parewte siue exheredatus,
siue uiuo patre causa probatct
siue post mortem eius, omni
modo quasi agnatione rumpe-
bat testamentum.
§ 143. Nunc uero ex nouo
senatusconsulto quod auctore
diuo Hadriano factum est, si-
quidem uiuo patre causa pro-
batur, aeque ut olim omni
modo rumpit testamentum ; si
uero post mortem patris, prae-
teritus quidem rumpit testa-
mentum, si uero heres in eo
scriptus est uel exheredatus,
non rumpit testamentum ; ne
scilicet diligenter facta testa-
menta rescinderentur eo tern-
pore quo renouari non pos-
sent.
§ 144. Posteriore quoque
hand, as she thereby acquires the
status of a daughter and becomes
his self -successor.
§ 140. Nor does it avail to pre-
vent the rupture that such a wife
or adopted son was in that will
instituted heir, for as to disin-
heriting them, not having been
self-successors when the will was
made, the question could not then
have been material.
§ 141. So a son manumitted
after the first or second sale re-
verts into the power of his father
and revokes a previous will, nor
does it avail that he is therein
appointed heir or disinherited.
§ 142. The same rule formerly
held of the son in whose behalf
the decree of the senate allows
proof of error, if he was born
of an alien or Latin mother
who was married in the mistaken
belief that she was a Eoman: for
whether he was appointed heir
by his father or disinherited, and
whether the error was proved in
his father's life or after his death,
in every case the will was revoked
as by the subsequent birth of a
self-successor.
§ 143. Now, however, by a
recent decree of the senate, made
on the proposition of the late
emperor Hadrian, if the father is
alive when the error is proved,
the old rule obtains and the will
is in every case avoided ; but
when the error is proved after the
father's death, if the son was
passed over in silence, the will is
revoked ; but if he was appointed
heir or disinherited the will is
not revoked ; in order that care-
fully executed wills should not
be rescinded at a period when re-
execution is impossible.
§ 144. A subsequent will duly
IT. §§ 138-146.] Q. M. TESTAMENTA INFIRMENTVR 201
testamento quod iure factum
est superius rumpitur. nee in-
terest an extiterit aliquis ex eo
heres, an non extiterit ; hoc
enim solum spectatur, an exi-
stere potuerit. ideoque si quis
ex posteriore testamento quod
iure factum est aut noluerit
heres esse, aut uiuo testatore
aut post mortem eius antequam
hereditatem adiret decesserit,
aut per cretionem exclusus fue-
rit, aut condicione sub qua
heres mstitutus est defectus sit,
aut propter caelibatum ex lege
Julia summotus fuerit ab here-
ditate : quibus casibus pater
familias intestatus moritur,
nam et prius testamentum non
ualet ruptum a posteriore, et
posterius aeque nullas uires
habet, cum ex eo nemo heres
_extiterit. Inst. 2, 17, 2.
§ 145. Alio quoque modo
testamenta iure facta infirmaw-
tur, ueluti (cum) is qui fecerit
testamentum capite derninutus
sit; quod quibus modis accidat,
primo commentario relatum
est. Inst. 2, 17, 4.
§ 146. Hoc autem casu inrita
fieri testamenta dicemus, cum
alioquin et quae rumpuntwr
inrita fiant, (et quae statim ab
initio non iure fi.unt inrita
sint ; sed et ea quae iure facta
suirt et postea propter capitis
deminutionem inrita fiunt}
possunt nihilo minus rupta
dici. sed quia sane commodius
erat singulas causas singulis
appellationibus distingui, ideo
quaedam non iure fieri dicuntur,
quaedam iure facta rumpi uel
inrita fieri.
Inst. 2, 17, 5.
executed is a revocation of a prior
will, and it makes no difference
whether an heir ever actually
takes under it or no; the only
question is, whether one might.
Accordingly, whether the heir
instituted in a subsequent will
duly executed declines to be
heir, or dies in the lifetime of
the testator, or after his death
before accepting the inheritance,
or is excluded by expiration of
the time allowed for deliberation,
or by failure of the condition
under which he was instituted, or
by celibacy as the lex Julia pro-
vides ; in all these cases the tes-
tator dies intestate, for the earlier
will is revoked by the later
one, and the later one is inope-
rative, since no one becomes heir
under it.
§ 145. There is another event
whereby a will duly executed may
be invalidated, namely, the tes-
tator's undergoing a loss of status :
how this may happen was ex-
plained in the preceding book.
§ 146. In this case the will
may be said to be rescinded ; for
although both those wills that
are revoked and those that are
not from the first made in proper
form may be said to be rescinded,
and those that are made in proper
form but subsequently annulled
by loss of status may be said to
be revoked, yet as it is convenient
thatdifferentgrounds of invalidity
should have different names to
distinguish them, we will say
that some wills are not made in
proper form, others made in pro-
per form are either revoked or
rescinded.
§ 138. A will may be void from the first because it is not duly
202 SVCCESSIO PER VNIVERSITATEM [n. §§ 138-146.
made — testamentum nullum, injustum, non jure factum — or it may
be avoided by some subsequent circumstance— testamentum ruptum
§§ 138, 144, irritum § 146, destitutum — or it may be upset as being
unduteous — inofficiosum. A will is destitutum, 'cum ex eo nemo
heres extiterit,' § 144. A will may be revoked or ruptured by a sub-
sequent will, but not by a codicil. The tearing up or destruction of
a will does not revoke it, unless this is done by the testator ' animo
revocandi.' See § 151, comm. The innovations of Justinian changed
the effects of adoption. Under his enactment, if a child is adopted
by an ascendant the old rules obtain ; but a person adopted by a
stranger only acquires rights in the adoptive family in case of
the adopter's intestacy, and therefore need not be instituted or
disinherited by the adopter ; he retains, however, his rights in
his natural family, and therefore must be instituted or disinherited
in the will of his natural parent. 1 §§ 97-107, comm.
§ 139. By English law the only circumstance by which a will is
avoided (besides revocation, cancellation, execution of a later will)
is the marriage of the testator, and this operates universally, irre-
spectively of the birth of children. Marriage without manus, which
was usual in the time of Gaius, had no effect on a will.
§ 140. This was reversed before the time of Justinian, for we find
in Dig. 28, 3, 18 that the institution of the future adoptive son saves
a will from being ruptured by adoption. Indeed, considering that
the object of the lex Vellaea was to save wills from rupture, we may
be surprised that the extension of its provisions from the natural
postumi to the artificial postumi or quasi postumi had not been
established in the days of Gaius.
§ 141. Cf. 1 §§ 132-136.
§ 142, As to erroris causae probatio see 1 § 67.
BONOEVM POSSESSIO SECVNDVM TABVLAS.
§ 147. Nontamen per omnia § !47. Wills are not altogether
inutilia sunt ea testamenta inoperative either when originally
quae uel ab initio non iure informal or when though at first
facta sunt uel iure facta postea m*de in P™Per fo™ ^ were
inrita facta aut rupta sunt. subsequently rescinded or re-
,• • • voked ; for if the seals ot seven
nam si septem tedium sigms ^^ are ^ the ^
signata sint testamenta, potest mentaryheir is entitled todemand
scnptus heres secundum tabu- possession in accordance with the
las bonorum possessionem pe- will> if the testator was a citizen
tere, si modo defunctus testator of Rome an(j sui juris at the time
et ciuis Romanus et suae pote- Of his death ; but if the cause of
statis mortis tempore fuerit. nullity was, say, the testator's loss
nam si ideo inritum factum sit of citizenship, or loss of liberty,
testamentum, quod puta ciui- or adoption and he dies subject
ii. §§ 147-151.] BON. POSS. SECVNDVM TABVLAS 203
tatem uel etiam libertatem
testator amisit, aut is in ado-
ptionem se dedit (et) mortis
tempore in adoptiui patris po-
testate fuit, non potest scriptus
heres secundum tabulas bono-
rum possessionem petere.
Inst.2, 17,4.
§ 148. (Itaque qui} secun-
dum tabulas testamenti quae
aut statiin ab initio non iure
factae sint, aut iure factae
postea ruptae uel inritae erunt,
bonorum possessionem acci-
piunt, si modo possunt heredi-
tatem optinere, habebunt bono-
rum possessionem cum re; si
uero ab iis auocari hereditas
potest, habebunt bonorum pos-
sessionem sine re.
§ 149. Nam si quis heres iure
ciuili institutus sit uel ex primo
uel ex posteriore testamento,
uel ab intestato iure legitimo
heres sit, is potest ab iis here-
ditatem auocare ; si uero nemo
sit alius iure ciuili heres, ipsi
retinere hereditatem possunt,
nee ullum ius aduersus eos
habent cognati qui legitimo
iure deficiuntur.
§ 149 a. AliquaraZo tamen,
sicut supra | quoque notaui-
mus, etiam legitimis heredibus
potiores scripti habentur, veluti
si ideo non iure \ factum sit
testamentum, quod familia non
uenierit aut nun cupationis
uerba testator locutus non sit ;
j «(/nati petant heredi-
tatein 1 ex coustitutione
§150.
lulia
ueri-
-lege
possessores-
eja lege bona caduca fiunt et ad
populum deferri | iubentur, si
defuncto nemo .
to his adoptive father's power, the
heir instituted in the will is barred
from demanding possession in ac-
cordance with the will.
§ 148. Persons granted posses-
sion in accordance with a will
either originally not made in due
form or originally made in due
form and subsequently revoked or
rescinded, have, if only they can
maintain their right to the inheri-
tance, effective possession of it
(bonorum possessio cum re) ; but if
they can be deprived of the property
by an adverse claimant, the grant
of possession to them is ineffective
(bonorum possessio sine re),
§ 149. For an heir instituted
according to jus civile either by
an earlier or later will, or a statu-
tory heir by intestacy, can evict
the mere bonorum possessor ac-
cording to the will from the in-
heritance; but in default of such
claim on the part of a civil heir,
such possessor according to the
will can retain the inheritance, and
cannot be deprived of it by cog-
nates, these having no civil title.
§ 149 a. Sometimes, however,
an heir with a civil title is post-
poned to an irregularly appointed
heir ; for instance, if the irregu-
larity was only the absence of
mancipation or nuncupatory pub-
lication, since if the agnates of the
deceased claim the inheritance,
they may be repelled by the plea
of fraud, according to the consti-
tution of the Emperor Antoninus.
§ 150. Possession according to
the will is not defeated by the lex
Julia, underwhich law a condition
of caducity or devolution to thefis-
cus is the absence of every kind of
heir, whether civil or praetorian.
204 SVCCESSIO PER VNIVERSITATEM [n. §§ 147-151.
§ 151. | Potest ut iure facta
testamenta contraria uoluntate
| infirmeTitur. apparet (autem)
non posse QX eo solo infirma ri
testamentum, quod postea te-
stator id noluerit ualere, usque
adeo ut si linum eius incident,
nihilo minus iure ciuili ualeat.
quin etiam si deleuerit quoque
&ut conbusserit tabulas testa-'
menti, nihilo minus {non} de-
sinent ualere quae ibi fuerunt
scripta, licet eorum probatio
difficilis sit.
§ 151 a. Quid ergo est? si
quis ab intestato bonorum pos-
sessionem petieri£ et is | qui ex
eo testamento heres est petat
hereditatem, 1 |-
perueniat hereditas ; et hoc ita
rescripto imperatoris Antonini
significatur.
§ 151. A validly executed will
may be invalidated by a contrary
expression of will : but a will is
not, it is clear, invalidated by the
mere intention of revocation. And
consequently, in spite of the testa-
tor's cutting the strings by which
it is tied, it nevertheless, at civil
law, continues valid : and his era-
sure or burning of the dispositions
does not render them invalid,
though it makes them difficult of
proof.
§ 151 o. What then is the
result ? If a claimant demand
bonorum possessio by intestacy,
and a testamentary heir under
such circumstances demand the
civil inheritance under the will,
the latter is repelled by the plea
of fraud: and if no one should
demand bonorum possessio by
title of intestacy, the testamentary
heir is superseded by the fiscus
as unworthy of the succession in
order to carry the testator's in-
tention of excluding him into
effect : and this was enacted by a
rescript of the Emperor (Marcus
Aurelius) Antoninus.
§ 147. The validity of a testament implies, strictly speaking, the
continuance of a testator's intention, and therefore of his capacity of
intention (testamenti factio), from its first declaration to the moment
of his death. Accordingly an intermediate capitis diminutio avoided
the will invalid (irritum) at civil law, § 146. The praetor, however,
only looked at the first and last moments, and, if at these periods the
testator had testamenti factio, sustained his intentions by granting
possession according to the will, although he had undergone capitis
diminutio minima in the intervening period.
So at civil law a will was revoked (ruptum) by after-birth (agnatio)
of a self- successor, § 138 ; but if he died before the testator, the
praetor sustained the will by granting possession according to the
will to the heir instituted in it. Dig. 28, 3, 12 pr. Postumus
praeteritus, vivo testatore natus, decessit : licet juris scrupulositate
nimiaque subtilitate testamentum ruptum videatur, attamen si
ii. §§ 147-151.] BON. POSS. SECVNDVM TABVLAS 205
signatum fuerit testamentum, bonorum possessionem secundum
tabulas accipere heres scriptus potest, remque obtinebit, ut et divus
Hadrianus et Imperator noster rescripserunt. In order that posses-
sion in accordance with the will, granted when a will had been
avoided (irritum) by intervening loss of capacity, might be efficacious
(cum re), i. e. not defeasible by the claimant entitled at civil law by
intestacy, it was necessary that the testator on reacquiring capacity
should confirm his will by a codicil or other writing (codicillis aut
aliis litteris), Dig. 37, 11, 11, 2.
§ 148. There was no ipso jure, or necessarius, bonorum possessor,
corresponding to the heres necessarius, § 152, with whom delatio
and adquisitio hereditatis were coincident : all bonorum possessores
corresponded to the other class of heres, the heres extraneus or
voluntarius, with whom adquisitio was distinct from delatio here-
ditatis, and required a voluntary act (aditio). That is to say, the
person called (vocatus) by the praetorian edict to the succession
forfeited his right to succeed unless he made his claim (agnitio,
petitio, admissio bonorum possessionis) within a certain period, for
ascendants and descendants a year, for others 100 dies utiles from the
date of the vocatio (delatio). On the claim under the edict being made,
the grant (datio) of bonorum possessio followed as a matter of course
without any judicial investigation (causae cognitio). It was a mere
formality, a certificate of the magistrate, the praetor or praeses
provinciae, that the agnitio had been made within the allotted
period, before the expiration of the term allowed for deliberation.
If any real controversy arose, it was decided by one of two actions,
hereditatis petitio, or the Interdict Quorum bonorum. If the
claimant relied on his title at civil law, he sued by hereditatis
petitio ; if he relied on the title given him by the praetorian edict,
he sued by the Interdict Quorum bonorum. See 4 §144. If defeated
in either of these proceedings, he gained nothing by having obtained
the formal grant of praetorian succession — he had only bonorum
possessio sine re.
§ 149 a. A praetorian title was, as a general rule, sine re, if a civil
title was opposed to it, but the constitution of the Antonine emperor,
probably Marcus Aurelius, mentioned here and in § 120, made an
important inroad on this principle.
§ 150. Originally when a heritage was vacant from the failure of
intestate successors, Ulpian 28, 7, or from the neglect of an heir to
enter upon it, § 52, any stranger might take possession and acquire by
usucapio, but this right was rendered ineffectual by Hadrian's Senatus-
consultum, § 57. The lex Julia de Maritandis ordinibus, which is
the statute here referred to, was passed A. D. 4 ; for an account of its
purport and of the meaning of the term caduca see § 190 and § 206,
206 SVCCESSIO PER VNIVERSITATEM [ir. §§ 147-151.
comm. Besides its rights to caduca under this statute the public
treasury or that of the Emperor could claim all inheritances left
without an heir (bona vacantia). The state did not become necessary
successor (ipso jure) but had the delatio (ad populum deferri jubentur),
i. e. had the right of deliberation and acceptance or repudiation, Inst.
3, 11, 1. As universal successor the state could recover from the
unentitled occupant by Hereditatis petitio, Dig. 5, 3, 20, 7, and could
transfer its rights to a purchaser, as if the transfer were made under
the Sc. Trebellianum, 1. c. 54 pr. (cf. § 253).
The treasury was bound to pay all codicillary legacies and trusts :
and succeeded to all the obligations active and passive, in other
words, to all the personal rights and personal duties, of the heritage-
leaver : but like other successors in later times, under the law of
Justinian, might, by taking advantage of the Benefice of inventory,
confine its liability to the extent of the assets, §§ 158-162, comm.
In the event of the repudiation of the succession by the Fiscus, the
goods were sold for the benefit of creditors. Vangerow, § 564.
Gains probably here means, though the MS is defective, that
although a grant of bonorum possessio might be rendered ineffective
(sine re) in consequence of the superior claims of a person with
a civil title by whom the possessor could be evicted, the fiscus had
no title to an inheritance under the lex Julia, if the deceased, though
without a civil successor, had left a bonorum possessor. (Cf. note on
§ 150 in Muirhead's Gaius.)
§ 151. The Eupture (ruptio) of a will was produced by two
circumstances: (i) Agnatio postumi, the subsequent birth of a self-
successor, or the coming into existence of a quasi postumus, § 1 39 :
and (2) Revocation, §§ 138-146, comm. On the principle, Nihil tarn
naturale est quam eo genere quidque dissolvere quo colligatum est
(Dig. 50, 17, 35), the most formal and originally the only mode of
revoking a will would be the execution of a subsequent will. Another
mode of Revocation sanctioned by Justinian depended on two con-
ditions: a declaration attested by three witnesses or made in the
form of a record or protocol deposited in the archives of a court, and
the expiration of ten years from the date of the execution of the will.
Cod. 6, 23, 27.
The mere cancellation or obliteration of a will, with the intention
of revoking it, was an informal Revocation and left the will valid at
civil law : the will, however, was not allowed to hold good against
this evidence of the testator's change of intention. The rescript of
Marcus Aurelius A. D. 166 to this effect, to which Gaius alludes
§ 151 a, is preserved in the Digest, 28, 4, 3.
Justinian ordained that a will should be perfectly revoked and
completely avoided by the cutting of the cords, or removal of the
ii. §§ 147-151.] BONA EREPTORIA 207
seals, or other intentional destruction of the outward signs of its due
solemnization, Cod. 6, 23, 30. English law, as laid down in 1 Viet.
c. 26 § 20 and interpreted in the celebrated case of Lord St. Leonards,
L. K. 1 P. D. 154, seems to be in conformity with Eoman law on the
subject of unintentional erasure or destruction of a will.
§ 151 a. Ereption for indignitas, an institution which survived in the
legislation of Justinian, Dig. 34, 9, Cod. 6, 35, must be distinguished
from the lapse of a testamentary disposition under the lex Julia (cadu-
cum), §§185-190, comm. In the latter case there was want of capacitas,
as opposed to want of testamenti factio passiva, on the part of honoratus.
In the case of the indignus there was not even incapacitas but only
liability to deprivation. Some grounds of Ereption were common to
the heir and legatee, others peculiar to the heir, others peculiar to the
legatee. The forfeiture of the inheritance or legacy was sometimes
in favour of the Fiscus, sometimes in favour of other persons, usually
of those who would have taken but for the disposition in favour of
indignus.
Instances of grounds for which either heir or legatee forfeited their
interest to the Fiscus were : undertaking a secret unlawful trust,
coercion of the testator in respect of his will, killing the testator or
neglect to avenge his death, wrongful impeachment of his will for
inofficiositas, &c.
Grounds for which their shares were forfeited to other persons than
the Fiscus were : refusal of the office of guardian when the prospect
of the discharge of this duty was the motive of the testator's bounty,
refusal to undertake the education of an infant child of the testator,
neglect of the testator's burial, &c.
Grounds on which the heir alone forfeited the whole or part of his
inheritance to the Fiscus were : concealment of a portion of the here-
ditaments in order to defraud a legatee (whereupon the heir forfeited
the fourth which he was entitled to retain from such legacy by the
lex Falcidia), the discovery that though putative son he was not
a genuine son of the testator, the deliberate cancellation of his name
by the testator, the imperfect execution of a subsequent will in
which he was excluded from the heritage, a codicillary declaration
of his unworthiness to inherit, &c.
Grounds on which an heir forfeited his portion to persons other
than the Fiscus were : neglect on the part of a mother to demand
a guardian for her infant child, a second marriage by a mother who
herself is guardian before she has caused another guardian to be sub-
stituted, neglect of a lunatic testator, neglect to ransom the testator,
criminal prosecution of testator, &c.
Grounds exclusively affecting a legatee and that in favour of the heir
are theft from the heritage and concealment of the testator's will.
208 SVCCESSIO PER VNIVERSITATEM [n.§§ 152-173.
DE HEREDVM QVALITATE ET DIFFERENTIA.
§ 152. Heredes autem aut
necessarii dicuntur aut sui et
necessarii aut extranei.
Inst. 2, 19 pr.
§ 153. Necessarius heres est
seruus cum libertate heres in-
stitutus, ideo sic appellatus,
quia siue uelit siue nolit, omni
modo post mortem testatoris
protinus liber et heres est.
Inst. 2, 19,1.
§ 154. Vnde qui facultates
suas suspectas habet, solet
seruum suum primo aut se-
cundo uel etiam ulteriore gradu
liberum et heredem instituere,
ut si creditoribus satis non
fiat, potius huius heredis quam
ipsius testatoris bona uenean£,
id est ut ignominia quae accidit
ex uenditione bonorum hunc
potius heredem quam ipsum
testatorem contingat ; quam-
quam apud Fufidium Sabino
placeat eximendum eum esse
ignominia, quia non suo uitio
sed necessitate iuris bonorum
uenditionem pateretur; sed alio
iure utimur. Inst. 1. c.
§ 155. Pro hoc tamen in-
commodo illud ei commodum
praestatur, ut ea, quae post
mortem patroni sibi adquisierit,
siue ante bonorum uenditionem
siue postea, ipsi reseruentur ;
et quamuis pro portione bona
uenierint, iterum ex hereditaria
causa bona eius non uenient,
nisi si quid ei ex hereditaria
causa fuerit adquisitum, uelut
si f Latinus adquisierit, locu-
pletior factus sit ; cum cete-
rorum hominum quorum bona
uenierint pro portione, si quid
§ 152. Heirs are either neces-
sary successors or necessary self-
successors or external successors.
\
§ 153. A necessary successor is
a slave instituted heir with free-
dom annexed, so called because,
willing or unwilling, without any
alternative, on the death of the
testator he immediately has his
freedom and the succession.
§154. For when a man's affairs
are embarrassed, it is common for
his slave, either in the first place
(institutio) or as a substitute in
the second or any inferior place
(substitutio), to be enfranchised
and appointed heir, so that, if the
creditors are not paid in full, the
property may be sold rather as be-
longing to this heir than to the
testator, the ignominy of insol-
vency thus attaching to the heir in-
stead of to the testator; though, as
Fufidius relates, Sabinus held that
he ought to be exempted from ig-
nominy, as it is not his own fault,
but legal compulsion, that makes
him insolvent; this, however, is
not in our view the law.
§ 155. To compensate this dis-
advantage he has the advantage
that his acquisitions after the
death of his patron, and whether be-
fore or after the sale, are kept apart
for his own benefit, and although
a portion only of the debts is
satisfied by the sale, he is not
liable to a second sale of his after-
acquired property for the debts of
the testator, unless he gain any-
thing in his capacity as heir, as if
he inherit the property of a Lati-
nus Junianus [another freedman
of the testator] ; whereas other
persons, who only pay a dividend,
ii. §§152-1 73.] DE HEREDVM QVALITATE
postea adquirant, etiam saepius
eorum bona uemre sclent.
Inst. 1. c.
§ 156. Sui autem et neces-
sarii heredes sunt uelut filius
filiaue, nepos neptisue ex filio,
(ety deinceps ce£eri qui modo
in potestate morientis fuerunt.
sed uti nepos neptisue su^s
heres sit, non sufficit eum in
potestate aui mortis tempore
fuisse, sed opus est ut pater
quoque eius uiuo patre suo
desierit suus heres esse aut
morte interceptus aut qualibet
ratione liberatus potestate ; turn
enim nepos neptisue in locum
sui patris succedunt.
Inst. 2, 19, 2.
§ 157. Sed sui quidem heredes
ideo appellantur,quia domestici
heredes sunt et uiuo quoque
parente quodammodo Domini
existimantur ; undo etiam si
quis intestatus ' mortuus sit,
prima causa est in successiqne
liberorum. necessarii uero ideo
dicuntur, quia omni modo,
(sine} uelint si\ie (nolint, tarn)
ab intestate quam ex testa-
mento heredes fiunt. Inst. 1. c.
§ 158. Sed his praetor per-
inittit abstinere se ab here-
ditate, ut potius parentis bona
ueneant. Inst. 1. c.
§ 159. Idem iuris est et (m)
uxoris persona quae in manu
est, quia filiae loco est, et in
nuru quae in manu filii est,
quia neptis loco est.
§ 160. Quin etiam similiter
abstinendi pofestatem facit
praetor etiam ei qui in causa
on subsequently acquiring any
property, are liable to subsequent
sales again and again.
§ 156. Sui et necessarii heredes
are such as a son or daughter, a
grandson or granddaughter by
the son, and further lineal de-
scendants, provided that they
were under the power of the an-
cestor when he died. To make
a grandson or granddaughter self-
successor it is, however, not
sufficient that they were in the
power of the grandfather at the
time of his death, but it is further
requisite that their father in the
life of the grandfather shall have
ceased to be self-successor,
whether by death or by any
mod.e of liberation from parental
power, as the grandson and
granddaughter then succeed to
the place of the father.
§ 157. They are called sui
heredes because they are family
heirs, and even in the lifetime of
the parent are deemed to a certain
extent co-proprietors ; wherefore
in intestacy the first right of
succession belongs to the children.
They arp called necessary, because
they have no alternative, but,
willing or unwilling, both in
testacy and intestacy, they be-
come heirs.
§ 158. The praetor, however,
permits them to abstain from the
succession, and leave the estate of
the ancestor to be sold as an in-
solvent one.
§ 159. The same rule governs
a wife in the hand of a husband,
for she is on the footing of a
daughter, and a son's wife in the
hand of the son, for she is on the
footing of a granddaughter.
§160. A similar power of absten-
tion is granted by the praetor to
a person held in mancipium when
210 SVCCESSIO PER VNIVERSITATEM [n. §§ 152-173.
mancipii est, (si) cum libertate
heres institutus sit, quamuis
necessarius, non etiam suus
heres sit, tamquam seruus.
§ 161. Ceteri qui testatoris
iuri subiecti non sunt extranei
heredes appellantur. itaque
liberi quoque nostri qui in
potestate nostra non sunt here-
des a nobis instituti [sicut] ex-
tranei uidentur. qua de causa
et qui a matre heredes insti-
tuuntur eodem numero sunt,
quia feminae liberos in pote-
state non habent. serui quo-
que qui cum libertate heredes
instituti sunt et postea a domi-
no manumissi, eodem numero
habentur. Inst. 2, 19. 3.
§ 162. Extraneis autem here-
dibus deliberandi potestas data
est de adeunda hereditate uel
non adeunda. Inst. 2, 19, 5.
& 163. Sed siue is cui absti-
• j. . .
nendi potestas est inmiscuerit
se bonis hereditariis, siue is cui
de adeunda (Jiereditate} de-
liberare licet, adierit, postea
relinquendae hereditatis facul-
tatem non habet, nisi si minor
sit annorum xxv. nam huius
aetatis hominibus, sicut in cete-
ris omnibus causis deceptis, ita
etiam si temere damnosam here-
ditatem susceperint. praetor
succurrit. scio quidem diuum
Hadrianum etiam maiori xxv
annorum ueniam dedisse, cum
post aditam hereditatem grande
aes alienum quod aditae here-
ditatis tempore latebat ap-
paruisset. Inst. 1. c., and 6.
§ 164. Extraneis heredibus
solet cretio dari, id est finis
deliberandi, ut intra certum
temp us uel adeant hereditatem,
instituted heir with freedom an-
nexed, although he is simply a
necessary successor and not also
a self-successor, mancipation being
assimilated to servitude.
§ 161. Those who were not
subject to the testator's power
are called strangers, or external
heirs. Thus children not in our
power, if instituted heirs, are
deemed strangers ; and for the
same reason children instituted
by their mother belong to this
class, because women are not
invested with power over their
children. Slaves instituted heirs
with freedom annexed, and sub-
sequently manumitted, belong to
the same class.
§ 162. External heirs have the
right of deliberating whether they
will or will not enter on an
inheritance.
§ 163. But if either a person
who has the power of abstention
or a person who has the power of
deliberation as to his acceptance
of the inheritance, interferes with
the property belonging to the in-
heritance, he has no longer the
right of relinquishing the inheri-
tance, unless he is a minor un-
der twenty-five years of age ; for
minors, both when they take any
other injudicious step, and when
they incautiously accept a disad-
vantageous inheritance, obtain re-
lief from the praetor. The late
Emperor Hadrian even relieved a
person who had attained his ma-
jority, when, after his acceptance
of an inheritance, a great debt,
unknown at the time of accept-
ance, had come to light.
§ 164. External heirs are com-
monly given by the will a pre-
scribed term for decision (cretio),
that is, a definite delay for deli-
beration, within which time they
IT. §§ 152-173.] DE HEREDVM QVALITATE
211
uel si non adeant, temporis fine
summoueantur. ideo autem
cretio appellata est, quia cernere
est quasi decernere et consti-
tuere.
§ 165. Cum ergo ita scriptum
sit HEEES TITIVS ESTO, adicere
debemuscERNiTOQVE IN CENTVM
DIEBVS PROXIMIS QVIBVS SCIES
POTERISQVE. QVODNI ITA CRE-
VERIS, EXHERES ESTO.
§ 166. Et qui ita heres in-
stitutus est, si uelit heres esse,
debebit intra diem cretionis
cernere, id est haec uerba dicere
QVOD ME P. MEFIVS TESTAMENTO
SVO HEREDEM INSTITVIT, EAM
HEREDITATEM ADEO CERNOQVE.
quodsi ita non creuerit, finite
tempore cretionis excluditur ;
nee quicquam proficit, si pro
herede gerat, id est si rebus
hereditariis tamquam heres
utatur. Inst. 2, 19, 7.
§ 167. At is qui sine cretione
heres insti£utus sit, aut qui ab
intestate legitimo iure ad here-
ditatem uocatur, poteti aut cer-
nendo aut pro herede gerendo
uel etiam nuda uoluntate sus-
cipiendae hereditatis heres fieri ;
eique liberum est quocumque
tempore uoluerit, adire here-
ditatem ; (sec?) solet praetor
postulantibus hereditariis cre-
ditoribus tempus constituere,
intra quod si ueKt adeat here-
ditatem, si minus, ut liceat
creditoribus bona defuncti uen-
dere.
§ 168. Sicui autem {qui}
cum cretione heres institutus
est, nisi creuerit hereditatem,
non fit heres, ita non aliter ex-
must formally accept, and in de-
fault of formal acceptance are
barred. Cretio is so called because
the word cernere is equivalent to
decernere, that is, to come to a
determination and resolution.
§ 165. Accordingly, after the
words, ' Titius, be thou my heir,'
we ought to add, 'and formally
declare thy acceptance within
a hundred days in which thou
knowest of thy institution and
hast power to declare whether
thou accept ; or in default of so
declaring be thou disinherited.'
§ 166. And the heir thus
appointed, if he wish to inherit,
must within the term prescribed
solemnly declare his decision in
the following words : ' Whereas
Publius Mevius in his will has
made me his heir, that inheritance
I hereby accept and adjudge to
myself.' In default of such
formal declaration, the elapsing
of the period allowed shuts him
out from the inheritance, and it
is of no avail that he behave as
heir, that is, deal with the estate
of the deceased as if he were heir.
§ 167. In the absence of a pre-
scribed term for deliberation in
the case of testamentary succes-
sion, and in the case of a statutory
right of succession on intestacy,
a man takes the inheritance either
by formal declaration, or by be-
having as heir, or by informal
declaration, and is not barred
from accepting by any lapse of
time ; but it is usual for the
praetor, at the demand of the
creditors of the deceased, to ap-
point a period, on the expiration of
which without his acceptance the
creditors are permitted to put up
the estate of the deceased for sale.
§ 168. But just as a person
who is instituted heir subject to
a prescribed term for decision
does not actually become heir
212 SVCCESSIO PER VNIVERSITATEM [n. §§ 152-173.
cluditur, quam si non creuerit
intra id tern pus quo cretio finita
eat ; itaque licet ante diem cre-
tionis constituent hereditatem
non adire, tamen paenitentia
actus superante die cretionis
cernendo heres esse pptest.
§ 169. At is qui sine cretione
heres institutus est, quiue ab
intestate per legein uocatur,
sicut uoluntate nuda heres fit,
ita et contraria destinatione
statim ab hereditate repellitur.
§ 170. Omnis autem cretio
certo tempore constringitur. in
quam rem tolerabile tempus
uisum est centum dierum. po-
test tamen nihilo minus iure
ciuili au.t longius aut breuius
tempus dari ; longius tarnen
inferdum praetor coartat.
§ 17}.. Et quamuis omnis
cretio certis diebus constringa-
tur, tamen alia cretio uulgaris
uocatur, alia certorum dierum :
uulgaris ilia, quam supra ex-
posuimus, id est in qua ad-
icfuntur haec uerba QVIBVS
SCIET POTERITQVE ; certorum
dierum, in qua detractis his
uerbis cetera scribuntur.
§ 172. Quarum cretionum
magna differentia est. nam
uulgari cretione data nulli dies
conputantur, nisi quibus scierit
quisque se heredem esse insti-
tutum et possit cernere. cer-
torum uero dierum cretione da-
ta etiam nescient i se heredem
institutum - esse numerantur
dies continui ; item ei quoque
qui aliqua ex causa cernere
prohibetur, et eo amplius ei
unless he makes a formal declara-
tion of his acceptance, so the
only way he is excluded from
the inheritance is by his not thus
declaring within the last day of
the appointed term ; and though,
pending the term, he may have
made up his mind to disclaim,
yet if he change his mind before
the time is expired and formally
declare his acceptance, he can
become heir.
§ 1 69. If no term is prescribed
in the institution, or in the case
of a statutory right of succession
on intestacy, just as an informal
declaration makes him heir, so the
contrary declaration immediately
bars him from the succession.
§ 170. Every prescribed term
of deliberation has a certain limit,
and a reasonable limit is held to
be a hundred days, yet by the
civil law a longer or shorter period
is allowed to be fixed, though a
longer period is sometimes short-
ened by the praetor.
§ 171. Although, however, the
time of deliberation is always
limited to .certain days, yet one
mode of limitation is called ordi-
nary, the other determinate ; the
ordinary being that above in-
dicated, namely, with the addition
of the words ' in which he knows
and is able ' ; determinate that in
which these words are omitted.
§ 172. These modes are very
different in effect, for when the
ordinary period is allowed, the
only days computed are those on
which he knows of his institution
and is in a position to decide,
but when a determinate period
is allowed, notwithstanding the
heir's want of knowledge of his
institution, the days begin to be
counted continuously ; and so not-
withstanding his inability from
any cause to declare, or any con-
ii. §§ 152-173.] DE HEREDVM QVALITATE 213
qui sub condi clone heres iwsti- dition annexed to his institution,
tutus est, tempus numeratur ; nevertheless the days begin to be
unde melius et aptius est uul- reckoned. Accordingly, it is better
gari cretione uti. and more convenient to employ
the ordinary mode of limitation.
§ 173. Continua haec cretio § 173. The determinate period
uocatur, quia continui dies is called continuous, because the
numerantur. sed quia [tamen] days are reckoned continuously,
dura est haec cretio, altera in On account of the harshness of
usu habetur ; unde etiam uul- this condition the other is com-
garis dicta est. monlv employed, and hence is
called ordinary.
§ 152. The rules of institution and disinheritance were formal
restrictions on the unlimited power of testamentary disposition, which
was conferred by the terms of the Twelve Tables ; § 102, comm. The
general tendency and purpose of these restrictions are to protect
children against the caprice of parents, and to be fully compre-
hended they should be viewed in connexion with the rules respecting
testamentum inofficiosum, which were not simply formal but real
restrictions of- testamentary freedom. These limitations of testa-
mentary power may be considered as consequences of the Eoman
conception of family duty. An English testator has unlimited
power to dispose of his property, and natural feeling is supposed
to be a sufficient guaranty that none of his children will be left
without suitable provision. Of Koman testators Justinian says :
Inst. 2, 18 pr. Plerumque parentes sine causa liberos suos vel
exheredant vel omittunt. The grounds on account of which parents
may disinherit children, and children parents, are stated by Justinian
in his 115th Nov., where the law on the subject of disinherison is
consolidated and amended. They had to be mentioned in the will,
and it was open to the disinherited person to show that they were
unfounded. It is to be noticed that foreign systems of law, following
the Koman example, generally restrict the father's power of disin-
herison. Cf . Sohm, § 1 1 3. The principal impediments to or restric-
tions on testamentary freedom in the history of Eoman law may be
distinguished as follows : —
(1) We have seen, § 123, that a suus heres must either be instituted
or disinherited, a rule which the praetor extended to an emancipated
child, § 135. This secured him against being simply forgotten.
(2) If a child was disinherited without a cause, or received less than
one fourth, either as heir or legatee, of what his share would have been
by intestate descent (portio legitima), he could by impeaching the will
as immoral or unnatural (querela inofficiosi testamenti) have it set
aside on the fictitious presumption of the testator's insanity. The
presumption, at least, was so far fictitious that it was not allowed to
214 SVCCESSIO PER VNIVERSITATEM [n. §§ 152-173.
l)e rebutted by any other proof of his sanity except proof of the
adequacy of the motives for which the child was disinherited. The
querela inofficiosi was a form of petitio hereditatis, that is, a real
action, and fell under the jurisdiction of the centumviral court, 4 § 31.
Cf. Pliny, Ep. 5, 1 ; 6, 33. The amount of the share which must be
left to a child to save a will from avoidance for inofficiositas bears
some analogy to a requirement of the lex Falcidia, for it is identical
with the amount which that law secures to the child or any one else
when instituted heir as against the claims of legatees. The querela
inofficiosi could not only be brought by a child but also by certain
other near relatives, namely, parents, and by brothers and sisters,
but by the last only if a turpis persona was instituted. Children
and other near relations, even though emancipated, might be entitled
to this remedy. See Inst. 2, 18 ; Dig. 5. 2 ; Cod. 3, 28.
(3) Although a child (or any one else) were instituted heir, yet the
institution might be made illusory by the exhaustion of the whole
inheritance in legacies, leaving nothing to the heir but the burden of
administration. To meet this, the lex Falcidia provided that when
more than three fourths of an inheritance is absorbed in legacies, all
the legacies should abate proportionably so as to leave the heir a clear
fourth of the portion in which he was instituted (quarta Falcidia), § 227.
(4) The senatus consultum Pegasianum provided in the same way
against the inheritance being similarly exhausted by fideicommissa,
§254.
We may add that an impubes adopted by adrogation, if disinherited
or without cause emancipated, was entitled to one fourth of the inheri-
tance of his adoptive father (quarta Antonini), 1 § 102 ; Inst. 1, 11, 3.
§ 154. Primo aut secundo vel etiam ulteriore gradu, for an account
of substitutio see § 174, &c.
§ 155. Velut si Latinus, cf. § 195 and 3 § 58 ; and for an explanation
of the idiom see note to this passage in Muirhead's Gaius.
§ 157. Communism or co-ownership appears to be an older insti-
tution than divided or individual ownership. Even after the rights
of the paterfamilias had been enormously developed at the expense
of the rest of the household, as may have been the case in prehistoric
times, a vestige of the times when property vested rather in the
family than in the chief was perhaps preserved in the rules re-
specting the suus heres. Suus heres appears equivalent to sibi heres,
and implies that he who now enters on proprietary rights in the
character of paterfamilias had already possessed proprietary rights
over the same subject-matter in the character of filiusfamilias.
Less barbarous than self-successor (the term chosen to represent
suus heres as expressing sibi heres) but too long for perpetual use,
would have been the circumlocution, immediate lineal successor.
ii. §§152-173.] DE HEREDVM QVALITATE 215
Suus heres is a lineal descendant as opposed to the legitimus heres
or nearest agnate, who is a collateral relation, on whom the inheritance
devolves by the lex duodecim Tabularum in case there are no sui :
and he is an immediate heir as opposed to an eventual heir. For
instance, a grandson by an unemancipated son is in the grandfather's
power, and may eventually be his heir, but is not his suus heres
during the life of the son.
§§ 158-162. After acquiring an inheritance the heir became
personally liable to the testator's creditors for the full amount of the
testator's debts. But to relieve sui et necessarii heredes from being
thus compulsorily burdened, the beneficium abstinendi was given
them, § 158. The praetor could not, indeed, unmake, any more than
he could make, a heres, but by his control over procedure he could
put a person who had a civil title in the same position as if he had
none, while, on the other hand, he regarded persons, having no civil
title to the inheritance, as if they were heredes.
Adquisitio hereditatis by an external or voluntary heres may
probably have required at first in all cases a formal act (cretio) ; but
acting the part of heres (pro herede gerere), however informally, came
to be recognized as equivalent in legal effect to a formal declaration,
unless an institution was expressly made ' cum cretione.' The object
of instituting an heir ' cum cretione ' was to oblige him to accept or
abandon the inheritance within a prescribed term. For otherwise
the law allowed him to postpone his decision indefinitely, § 167.
It was to get rid of the inconvenience caused by leaving the
inheritance open for a long period, that the praetor at the request of
creditors of the estate fixed a period, generally a hundred days
(tern pus deliberandi), after which he authorized the sale of the pro-
perty, § 167. When it became customary for the praetor to prescribe
this time for deliberation, the formularies of cretio had no intelligible
policy and were regarded as irksome. After being dispensed with
in certain cases by other emperors, they were totally abrogated by
Arcadius and Theodosius, A.D. 407. Cod. 6, 30, 17 Cretionum
scrupulosam sollennitatem hac lege penitus amputari decernimus.
'Solemn declaration with its embarrassing formalities is hereby
decreed to be absolutely abolished.' (For allusions to cretio by Cicero
see Koby, Roman Law, 1, p. 396 and App. Bk. III.) For the
repudiation of an inheritance by a voluntary heir no solemn form
was at any time in use, and perhaps such repudiation was not legally
recognized in early law, though it was possible for the heres to assign
his right by in jure cessio. Thus an inheritance could not be lost
any more than it could be acquired by a mere expression of intention,
and it has been suggested that the abeyance of inheritances on this
account was a cause which gave rise to bonorum possessio. In the
216 SVCCESSIO PER VNIVERSITATEM [n. §§ 152-173.
time of Gaius, however, a heres could on delatio reject an inheritance
by any informal act expressive of his intention, and the acceptance
or rejection of an inheritance once made was irrevocable. § 169.
To afford an escape from the danger of accepting inheritances more
onerous than lucrative Justinian introduced the beneficium Inventarii,
or privilege of making an inventory, reducing the liability of an heir
who made the required inventory to the extent of the assets that came
to his hands. The inventory must be commenced within thirty days
from notice of the inheritance and completed in sixty other days. It
must be executed in the presence of a notary (tabellarius) and the
persons interested or three witnesses, Inst. 2, 19, 6 ; Cod. 6, 30, 22.
By English law the executor in every case is bound to make an
inventory, and in no case is he answerable to the testator's creditors
beyond the assets that come to his hands, unless for a sufficient
consideration he make his own estate chargeable by a written
engagement, as provided by the Statute of Frauds.
§§ 164-173. When a right is extinguished by inactivity prolonged
for a certain period, as in the case of a heres after delatio who has
omitted to make cretio within the time prescribed, the period has two
modes of measurement : either every day is counted, and then the
period is called tempus continuum } or only available days, days on
which activity is possible, are counted, and then the period is called
tempus utile. When a general rule prescribes a term, not greater
than a year, within which certain steps must be taken before a court
or judicial authority, on pain of forfeiting certain rights, such a term
must be measured as tempus utile. Such are the rules requiring
certain suits to be instituted within a year from their nativity, that
is, limiting a year for their period of prescription ; and the rule
requiring the demand of the possession of a heritage (agnitio bonorum
possessionis), whether testate or intestate, to be made, if the claimant
is an ascendant or descendant, within a year 5 if he is a stranger,
within a hundred days. The demand was made in writing, addressed
to a competent magistrate, and was followed by an immediate grant de
piano in the form of a simple subscriptio, Do bonorum possessionem.
Kuntze, 856. When the step required is rendered impossible, not by
a permanent obstacle, such as infancy, lunacy, prodigality, or juristic
personality, but by some transitory circumstance, the days on which
the action is hindered are excluded from the computation of the term.
Such hindrance f i) may relate to the person entitled, and then will
be his captivity, or his absence on public service, or his detention by
weather or illness, coupled with inability to appoint a procurator :
(2) Or, in the case of the limitation of actions, it may relate to the
person of the defendant : if, for instance, he is unknown, or concealed,
or absent and undefended :
ii. §§ 152-173.] TEMPVS VTILE 217
(3) Or it may consist in the absence of the praetor from the court.
Such absence might be accidental, or it might arise from the regular
intermission of the dies juridici, or days on which the praetor per-
formed his judicial functions, § 279, comm. As in the time of Marcus
Aurelius such days only amounted to 230 in a year (Suetonius,
Octavianus, 32), this cause alone would make annus utilis equivalent
to about 1^ ordinary years. The intermission of dies juridici was doubt-
less the principal cause of a claimant's inability to perform an act in
court on certain days ; but in Eoman law, as in modern times it was ad-
ministered in Germany,; when much of the procedure in an action had
come to consist in delivery of writings at the office of a court, irrespec-
tively of its session days and vacations, this cause lost its importance.
Knowledge (scientia) of the fact that he is entitled is not neces-
sarily requisite on the part of the person entitled : in other words,
his ignorance is not always sufficient to exclude a day from the
number of dies utiles. The prescription of an action, when it is
accomplished in annus utilis, begins to run from its nativity (actio
nata), irrespectively of the plaintiff's knowledge of his right to sue.
Ignorance of a right of action is generally the effect of Negligence,
and therefore undeserving of relief, arid might be protracted for
an indefinite period. On the contrary, ignorance is sometimes
a condition that delays the commencement of tempus continuum :
for instance, the 50 dies continui allowed to a person for stating
the grounds on which hfe was entitled to be excused from accepting
a guardianship only began to run when he had notice of his nomina-
tion, Inst. 1, 25) 16: which shows that scientia and ignorantia have
no necessary relation to the distinction of dies utiles and dies continui.
In the demand (agnitio) of bonorum possessio, however, by the
claimant of a testate or intestate succession, the edict expressly made
the scientia as well as the potestas of the claimant a condition of dies
utilis, Dig. 38^ 15, 2. Indeed the aditio of an inheritance was not
possible unless made with a knowledge of the fact of the delatio
and of its nature, whether testacj'- or intestacy. Moreover the igno-
rance of his rights could not be ascribed to the negligence of the
person entitled, nor was it likely to be indefinitely protracted, as it
would be the interest of the person next entitled to give him notice
of the delation. Knowledge will generally only affect the beginning
of a term, and the person who is once made aware of the delation of
an inheritance will usually continue aware : but it is possible that
a period of error should supervene ; for instance, that, after an
agnate has notice that he is entitled by intestacy and after his term
for acceptance has commenced to run, a forged will should be produced
and obtain credit : in which case the dies utiles would not continue to
run until the forgery of the will was ascertained. Savigny, § 189.
218 SVCCESSIO PER VNIVERSITATEM [n.§§ 174-184.
The testamentary clause allowing a term for cretio vulgaris in
contrast to cretio continua, like the edict relating to bonorum
possessio, made scientia as well as potestas a condition of tempus
utile.
As we have seen no time was prescribed by law for the aditio of
the civil inheritance, § 167 : for the acquisition (agnitio) of the prae-
torian succession we have seen that for ascendants and descendants
a year, for others a hundred days was prescribed, Inst. 3, 9, 9.
Agnitio and Repudiatio could be made by a procurator or agent,
Dig. 37, 1, 3, 7 : not so Aditio, Dig. 29, 2, 90, and still less Cretio.
§ 174. Sometimes two or more
degrees of heirs are instituted, as
follows : ' Lucius Titius, be thou
my heir, and declare solemnly
within a hundred days after you
know and are able : or, in default
of so declaring, be disinherited.
Thereupon, be thou, Mevius, my
heir, and solemnly declare within
a hundred da}7s,' &c. ; and in this
way we can make as many sub-
stitutions as we like.
§ 174. [DE
B-vs.] /nterdum duos pluresue
gradus heredum facirnus, hoc
Hiodo L. TITIVS HEEES ESTO CEE-
NITOQVE IN DIEBVS
PEOXIMIS QVIBVS SCIES POTEEIS-
QVE. QVODNI ITA CREVEEIS,
EXHEEES ESTO. TVM MEVIVS
HEEES ESTO CEENITOQVE IN
DIEBVS CENTVM et reliqua. et
deinceps in quantum uelimus
substituere possumus.
Inst. 2, 15 pr.
§ 175. Et licet nobis uel
unum in itnius locum substi-
tuere pluresue, et contra in
plurium locum uel unum uel
plures substituere. Inst. 2, 15, 1.
§ 176. Primo itaque gradu
scriptus heres hereditatem cer-
nendo fit heres et substitutus
excluditur ; non cernendo sum-
mouetur, etiamsi pro herede
gerat, et in locum eius substi-
tutus succedit. et deinceps si
plures gradus sint, in singulis
simili ratione idem contingit.
§ 177. Sed si cretio sine ex-
heredatione sit data, id est in
haec uerba si NON CREFJSEIS
TVM P. MEVIVS HEEES ESTO,
illud diuersum inuenitur, quod
si prior omissa cretione pro
herede gerat, substitutum in
partem admittit et fiunt ambo
aequis partibus heredes. quodsi
§ 175. We may substitute in
place of one either one or several,
and, conversely, in the place of
several we may substitute either
several or one.
§ 176. Accordingly, if the per-
son instituted in the first degree
accepts the inheritance, he is heir,
and the substitutes are excluded :
if he fail to declare with due for-
mality, he is barred in spite of
acts of heirship, and his place is
taken by the substitute ; and if
there are several degrees, in every
one a similar result occurs.
§ 177. If the formula prescrib-
ing a term of deliberation contains
no clauseof disherison, but merely
consists of these words: 'If thou
fail to declare, be Publius Mevius
my heir ' [cretio imperfecta], the
result is herein different, that, if
the person first instituted, though
he omit the solemn declaration,
ii. §§ 174-184.] DE SVBSTITVTIONIBVS
219
neque cernat neque pro herede
gerat, turn sane in uniuersum
summouetur, et substitutus in
totam hereditatem succedit.
6 178. Sed Sabino quidem
* i •
placuit, quamdiu cernere et eo
modo heres fieri possit prior,
etiamsi pro herede gesserit, non
tamen admitti substitutum ;
cum uero cretio finita sit, turn
pro herede gerente admitti sub-
stitutum. aliis uero placuit
etiam superante cretione posse
eum pro herede gerendo in
partem substitutum admittere
et amplius ad cretionem reuerti
non posse.
§ 179. Liberis nostris inpu-
beribus quos in potestate habe-
mus non solum ita ut supra
diximus substituere possumus,
id est ut si heredes non ex-
titerint, alius nobis heres sit ;
sed eo amplius ut, etiamsi
heredes nobis extiterint et ad-
huc inpuberes mortui fuerint,
sit iis aliquis heres ; uelut hoc
modo TITIVS FILIVS MEVS MIHI
HERBS ESTO. 81 FILIVS MEVS
MIHI (HERES NON ERIT SIVE
HERES) EEIT ET PRIVS MORIATVR
QVA.M IN SVAM TVTELAM VENE-
RIT, TVNC SE1VS HERES ESTO.
Inst. 2, 16 pr.
§ 180. Quo casu siquidem
non extiterit heres filius, sub-
stitutus patri fit heres ; si uero
heres extiterit filius et ante
pubertatem decesserit, ipsi filio
fit heres substitutus. quam
ob rem duo quodammodo sunt
act as heir, the substitute is only
admitted to a portion, and both
take a moiety : if he neither for-
mally declare nor act as heir, he
is entirely excluded, and the sub-
stitute succeeds to the whole in-
heritance.
§ 178. It was the opinion of
Sabinus that, as long as a term
for formally declaring and thereby
becoming heir subsists, a person
in a higher grade does not let in
the substitute, even if he inform-
ally act as heir, and that only after
the expiration of the term is the
substitute admitted instead of the
person instituted, who has been
acting as heir. But the other
school held that, even pending the
allotted term, informal acts of
heirship let in the substitute and
bar the prior heir from reverting
to his right of formal declara-
tion.
§ 179. To children below the
age of puberty in the power of
the testator, not only can such a
substitute as we have described
be appointed, that is, one who
shall take the inheritance on their
failure to inherit, but also one
who, if after inheriting they die
before attaining the age of puberty,
shall be their heir ; which may
be done in the following terms :
' Be my son Titius my heir, and
if my son does not become my
heir, or after becoming my heir
die before becoming his own
guardian, [that is before attaining
the age of puberty], then be Seius
the heir.'
§ 1 80. In which case, if the son
fail to inherit, the substitute is
the heir of the testator, but if the
son die after inheriting and with-
out attaining the age of puberty,
the substitute is heir to the son.
Thus there are two wills, so to
220 SVCCESSIO PER VNIVERSITATEM [n. §§ 174-184.
testamenta, aliud patris, aliud
tilii, tamquam si ipse filius sibi
heredem instituisset ; aut certe
unum est testamentum duarum
hereditatum. Inst. 1. c.
§ 181. Ceterum ne post obi-
tumparentispericuloinsidiarum
subiectus uideatur pupillus, in
usu est uulgarem quidem sub-
stitutionem palam facere, id est
eo loco quo pupillum heredem
instituimus ; (nam) uulgaris
substitutio ita uocat ad heredi*
tatem Bubstitutum, si onlnino
pupillus heres non extiterit ;
quod accidit cum uiuo parente
moritur, quo casu nullum sub-
stituti maleficium suspicari pos-
sumus, cum scilicet uiuo testa-
tore omnia quae in testamento
scripta sint ignorentur. illam
autemsubstitutionem per quam,
etiamsi heres extiterit pupillus
et intra pubertatem decesserit,
substitutum uocamus.'separatim
in inferioribus tabiilis scribi-
mus, easque tabulas proprio
lino propriaque cera consigna-
mus, et in prioribus tabulis
cauemus, ne inferiores tabulae
uiuo filio et adhuc inpubere
aperiantur. sed longe £utius
est utrumque genus substitu-
tionis [separatim] in inferioribus
tabulis consignari, quod si ita
[consignatae uel] separatae
fuerint substitutiones, ut dixi-
mus, ex priore potest intellegi
in altera [alter] quoque idem
esse substitutus. Inst. 2, 16, 3.
§ 182. Non solum autem
heredibus institutis inpuberibus
liberis ita substituere possumus,
ut si ante pubertatem mortui
fuerint, sit is heres quern nos
uoluerimus, sed etiam exhere-
datis. itaque eo casu si quid
pupillo ex hereditatibus lega-
speak, the father's and the son's,
just as if the son himself had
instituted an heir ; or at any rate
there is one will dealing with
two inheritances.
§ 181. However, to save the
ward from the danger of foul play
after the death of the parent, it
is common for the ordinary sub-
stitution to be made openly, that
is, in the clause wherein the ward
is instituted, for as the ordinary
substitution only calls a man to
the succession in case of the ward
altogether failing to inherit, and
this can only occur by his death
in the lifetime of his parent, the
substitute in this case is open to
no suspicion of crime, because
while the testator is alive the
contents of the will are a secret.
But the substitution, wherein a
man is named heir after the suc-
cession and death of the ward
before reaching the age of puberty,
is written separately on later
tablets, tied with their own cords
and sealed with their own wax,
and it is prohibited in the prior
tablets that the will should be
opened in the lifetime of the
son before he attains the age of
puberty. Indeed it is far safer
that both kinds of substitution
should be sealed up separately in
two subsequent tablets, for if the
ordinary substitution is contained
in the first tablets it is easy to
conjecture that the same substi-
tute is appointed in the second.
§ 182. Not only when we ap-
point children under the age of
puberty our heirs can we make
such a substitution that if they
die before puberty the substitute
is their heir, but we can do it
even when we disinherit them,
so that in case the ward should
ii. §§ 174-184.] DE PVPILLARI SVBSTITVTIONE 221
tisue aut donationibus propin- acquire anything either by heir-
quorum adquisitum fuerit, id ship, legacies, or by gifts of his
omne ad substitutum pertinet. relatives, all will belong to the
Inst. 2, 16, 4. substitute.
§ 183. Quaecumque diximus § 183. What has been said of
de substitutione inpuberum substitution to children below the
liberorum uel heredum institu- age of puberty, whether appointed
torumuelexheredatorum, eadem heirs or disinherited, is true of
etiam de postumis intellegemus. substitution to afterborn children.
Inst. 1. c.
§ 184. Extraneo oiero heredi § 184. To a stranger instituted
institute ita substituere non heir we cannot appoint a sub-
possumus, ut si heres exfciterit stitute who, if the stranger in-
et intra aliquod tempus deces- herit and die within a certain
sent, alius ei heres sit ; sed hoc time, is .to be his heir ; but we
solum nobis permissum est, ut have onlY power to bind him
eum per fideicommissum obli- bY a trust to convey the inheri-
gemus, ut hereditatem nostram ^ance to another, in part or in
totam uel (pro) parte restituat ; wh°le> a, ^ght which shall be
quod ius quale sit, sub ' loco S§^?1 m ^^ P
trademus. Inst. 2, 16, 9.
§ 177. It will be observed that this rule deviates from the principle
laid down in § 166. A constitution of Marcus Aurelius changing
the law further in the same direction, and mentioned by TJlpian
(Sed postea divus Marcus constituit, ut et pro herede gerendo ex
asse fiat heres, 22, 34. 'Subsequently Marcus Aurelius enacted that
acts of heirship would make him [the person instituted, in the case
of cretio imperfecta] exclusive heir '), was clearly not enacted when
this paragraph wa.s written by Gaius, and furnishes an indication
of the date at which this book of his Institutions was published.
Marcus Aurelius was sole emperor A. D. 169-176.
§ 179. Cicero frequently mentions a great case in which the
question arose whether a vulgaris substitutio may be implied from
a pupillaris substitutio. The centumviral court decided that the
intention rather than the words of the testator should prevail, and
that the heir appointed to succeed the son in case the son died
before puberty should be deemed appointed to succeed the testator
in case no son was born : Malim mini L. Crassi unam pro M'. Curio
dictionem quam castellanos triumphos duos, Brutus 73, 'I would
rather have made the single speech of Lucius Crassus for Manius
Curius than have had two triumphs for the capture of fortresses.'
The other passages are worth referring to De Orat. 1, 39, 57 ; 2, 6, 32 ;
Brutus, 39, 52; Pro Caecina, 18, 53; Topica, 10, 44. Marcus
Aurelius enacted that in every case pupillaris substitutio should be
implied in vulgaris substitute and vice versa, unless the contrary
intention was expressed, Dig. 28, 6, 4.
222 SVCCESSIO PER VNIVERSITATEM [n. §§ 185-190.
§ 184. That is to say, we cannot by the ordinary rules of law limit
an inheritance so as to make it subject to a resolutive condition or
determinable at a future time. All we can do is to direct the heir
by way of trust (fidei commissum) to reconvey the inheritance to
some one at a future time or on the happening of some future event.
Hereditas itself, strictly speaking, is indelible (semel heres semper
heres). Regula est juris civilis qua constitutum est hereditatem
adimi non posse, Dig. 28, 2, 13, 1. Of. §§ 246-257, comm.
DE HEREDIBVS INSTITVENDIS.
§ 185. Sicut autem liberi
homines, ita et serui, tarn nostri
quam alieni, heredes scribi pos-
sunt.
§ 186. Sed noster seruus
simul et liber et heres esse
iuberi debet, id est hoc modo
STICHVS SEKVVS MEVS LIBER
HERESQVE ESTO, uel HERES
LIBERQVE ESTO.
§ 187. Nam si sine libertate
heres institutue sit, etiamsi
postea manumissus fuerit a
domino, heres esse non potest,
quia institutio in persona eius
non const^it ; ideoque licet
alienatus sit, non potest iussu
domini noui cernere heredi-
tatem.
§ 188. Cum libertate uero
heres institutus siquidem in
eaofem causa durauerit, fit ex
testamento li&er et inde neces-
sarius heres. si uero ab ipso
testatore manumissus fuerit, suo
arbitrio hereditatem adire po-
test. quodsi alienatus sit, iussu
noui doming adire hereditatem
debet, qua ratione per eum
dominus fit heres ; nam ipse
neque heres neque liber esse
potest. Inst. 2, 14, 1.
§ 189. Alienus quoque seruus
heres institutus si in eadem
causa durauerit, iussu domini
hereditatem adire debet; si uero
alienatus ab eo fuerit aut uiuo
testatore aut post mortem eius,
§ 185. Not only freemen but
slaves, whether belonging to the
testator or to another person, may
be instituted heirs.
§ 186. A slave belonging to the
testator must be simultaneously
instituted and enfranchised in the
following manner: 'Stichus, my
slave, be free and be my heir ;* or,
' Be my heir and be free.'
§ 1 87. If he is not enfranchised
at the same time that he is insti-
tuted, no subsequent manumis-
sion by his owner enables him to
take the succession, because the
institution is originally void, and
even if aliened he cannot formally
declare his acceptance by the order
of the new master.
§ 188. When a slave is simul-
taneously instituted and enfran-
chised, if he continue in the same
condition, the will converts him
into a freeman and a necessary
heir : if the testator himself manu-
mits him in his lifetime, he is able
to use his own discretion about
acceptance : if he is aliened he
must have the order of his new
master to accept, and then his
master through him becomes
heir, the alienated slave himself
becoming neither heir nor free.
§ 189. When another person's
slave is instituted heir, if he con-
tinue in the same position, he
must have the order of his master
to accept the succession; if aliened
by him in the lifetime of the tes^
ii. §§185-190.] DE HEREDIBVS INSTITVENDIS 223
antequam cernat, debet iussu tator, or after his death before
noui domini cernere ; si uero formal acceptance, he must have
manumissus est, suo arbitrio the order of the new master to be
adire hereditatem potestf. able to accept : if manumitted be-
Inst. 1. C. ^ ore acceptance, he is able to follow
his own judgement as to accepting.
§ 190. Siautemseruusaliemis § 190. When a slave of another
heres institutus est uulgari ere- person is instituted heir with the
tione data, ita intellegitui dies ordinary term of cretio, the term
cretionis cedere, si ipse seruus only begins to run from the time
scierit se heredem institfutum when the slave has notice of his
esse, nee ullum inpedimentum appointment, and is not prevented
sit, quominus certiorem domi- in any waY from informing the
num faceret, ut illius iussu master SP *hat *e mav at his
cernere possit. order make formal accePtan<*.
§ 187. This rule was abolished by Justinian, who enacted that
the enfranchisement of the testator's slave, though unexpressed,
should always be implied in his institution as heir. Cod. 6, 27, 5 ;
Inst. 1, 6, 2.
§ 188. Justinian explains why the slave lost his liberty : De-
stitisse enim a libertatis datione videtur dominus qui eum alienavit,
Inst. 2, 14, 1. 'A revocation of the bequest of liberty is inferred
from the fact of his alienation.' If we ask why the implied inten-
tion that suffices to revoke the enfranchisement does not suffice to
revoke the institution, the answer is, that a bequest can be revoked
by any act clearly implying an intention to revoke, whereas an insti-
tution requires a more solemn revocation, by execution of a later
will, or some other means, §§ 147—151, comm.
§ 189. What was the motive of instituting as heir the slave of
another person ? Such a disposition could not be dictated by kindness
to the slave, for he would probably gain nothing by his institution ;
but was a device adopted for two purposes, (i) for facilitating the
conversion of a succession into money, and (2) for securing an institu-
tion against failure.
(i) By such a disposition the testator gave the proprietor of the
slave, whose benefit was intended, the option of either becoming
actual heir, or of doing, what he could not otherwise readily do, i. e.
of receiving the net value, or a large portion of the net value, of
the succession, without incurring the expense of the annexed sacred
rites (sacra) and the burden of administration, by practically selling
the succession for the highest price he could get to any one who was
willing to incur these expenses and troubles as a matter of specula-
tion. To effect this, he had only to sell the slave at a price enhanced
by his character of institutus. The slave thereupon, making aditio
of the inheritance in obedience to an order of the purchaser, vested
224 SVCCESSIO PER VNIVERSITATEM [n. §§ 185-190.
the inheritance in the purchaser. If the former proprietor was
reluctant to part with his slave, he had only to bargain for his
reconveyance by a fiducia or condition annexed to the sale or manci-
patio. Reddendus (or in the time of Gaius it might have been a case
of mancipatio cum fiducia) §st servus ea conditione ut, cum jussu
ejus adierit, rursum retradatur. By this branch of speculation the
instituted slave might pass through many hands before the succession
vested, Dig. 37, 11, 2, 9.
(2) A second object gained by the institution of another person's
slave was the transmission of an inheritance to the heirs of such
person, If the heir instituted died in the lifetime of the testator,
the institution failed, and the failure could not be prevented by the
substitution (secondary institution) of the heir of the person instituted,
for such heir would be a persona incerta, § 242. The difficulty was
met by instituting a slave, who on the death of his master, the
virtual heir, would become the slave of the master's heir, and acquire
for him the succession of the testator. TQ guard against the con-
tingency of the death of the slave in the lifetime of the testator,
several slaves might be instituted by way of substitution. Ihering,
§ 56. An inheritance delated to a slave is said to be ambulatory :
Ambulat cum dominio bonorum possessio, 1. c. (In a similar way
we might say : ambulat cum ca/pite noxa, 4 § 77.)
§ 190, Si ipse servus scierit se heredem institutum. The know-
ledge of the slave was material ;for the purpose of acquisition, since
the slave is regarded as if he were heir, though acquiring not for
himself but for his master. Cf, Inst. 3, 17, 1 and 2.
A slave instituted heir might be the property of several masters,
who when he entered upon the inheritance would become co-heredes
of it according to their respective shares in him. Inst. 2, 14, 3. In
the same title of the Institutes, Justinian mentions that an heir
might either be appointed to take the whole of an inheritance or to
share it with other co-heirs in any proportions. We may briefly
state the technical terms and rules of interpretation by which
different shares were allotted. An inheritance was commonly re-
garded as a pound (as) consisting of twelve ounces (unciae). The
different fractions were thus denominated : uncia, a twelfth of an as,
or an ounce ; sextans, a sixth of an as, or two ounces ; quadrans,
a fourth of an as, or three ounces ; triens, a third of an as, or four
ounces ; quincunx, five ounces ; semis, half an as, or six ounces ;
septunx, seven ounces ; bes (bis triens), two thirds of an as, or eight
ounces ; dodrans (deme quadrantem), an as minus a fourth, or nine
ounces ; dextans (deme sextantem), an as minus a sixth, or ten
ounces ; deunx (deme unciam), an as minus an ounce, or eleven
ounces ; as, twelve ounces.
II. §§ 185-190.] DE HEREDIBVS INSTITVENDIS 225
An heir instituted in twelve ounces (ex asse) took the whole : but
it was a rule that no one could be partly testate and partly intestate,
and therefore if an heir were instituted in a part (ex parte) and
no other co-heir instituted, that part represented a pound, and the
heir took the whole. So if the shares allotted to several co-heirs
amounted to more than twelve ounces, then, if no other heir was
appointed with an unexpressed share, the as was deemed to consist
of more than twelve ounces, and each co-heir took a ratable part of
the inheritance. If one heir were instituted in a part, say ex besse,
and a co-heir were instituted for whom no part was expressed, then
the co-heir would take the residue of the as, that is, would be deemed
to be instituted ex triente. But if the parts expressed for certain
heirs exhausted or exceeded the as and another heir or heirs were
named without express shares, then the whole inheritance was sup-
posed to consist of two asses (dupondius) and the expressed shares
were reduced to so many ounces out of twenty-four, the heir or heirs
with unexpressed parts taking the residue. Similarly, if necessary,
the inheritance was supposed to consist of thirty-six ounces.
If the institution of one co-heir lapsed, the shares of the remaining
co-heirs were ratably augmented (accretio), just as, if originally less
than twelve ounces had been distributed, the expressed shares of
each would be ratably augmented so as to exhaust the inheritance.
This rule, however, was modified by the leges caducariae, passed
chiefly to discourage celibacy, namely the lex Julia de maritandis
ordinibus, A. D. 4, and the lex Papia Poppaea, on marriage and suc-
cession, A. D. 9, in which the provisions of the lex Julia were in-
corporated, for which reason both laws are sometimes referred to as
lex Julia et Papia.
Caducum is a devise or bequest, valid at Civil law, but vacated by
some particular law or statute, such as a legacy to a celibate or Latinus
Junianus, in case the former fails within a hundred days to comply
with the law [the Lex Papia], or the latter to acquire full citizen-
ship ; or in case of the institution of a co-heir, or bequest to a legatee
who dies or becomes an alien before the will is opened, Ulpian, 17, 1.
[By the Civil law, unconditional devises and bequests vested (dies
cedit) at the death of the testator (though still defeasible by the failure
of the will) ; by the lex Papia Poppaea not before the opening of the
will, thus making the chance of a lapse greater, but Justinian re-estab-
lished the rule of Civil law.] Cf. Roby, Eoman Law, Bk. Ill, ch. x, B.
The leges caducariae, which fixed the conditions of caducity, were
aimed against the coelebs and the orbus. Cf. §§ 1 1 1, 144, 286. Coelebs
is defined to be an unmarried man between the age of twenty and sixty,
or an unmarried woman between the age of twenty and fifty. Orbus
is a man between fifty and sixty without children, natural or adoptive.
226 DE LEGATIS [n. §§ 191-223.
An unmarried person could take nothing as heres extraneus
or legatee ; an orbus could only take half of the devise or bequest
intended for him. The inheritance or legacy thus lapsed was
allotted by the leges caducariae in the first place, in the case
of a legacy, to conjoint legatees of the same specific thing if the
legatees had children ; in the second place to children or parents of
the deceased who were instituted heirs in his will ; in the third place
to heirs and other legatees having children ; and in last remainder to
the treasury (aerarium), § 206. Caracalla, A. D. 212-217, made them
lapse immediately to the fiscus ; Hodie ex constitutione imperatoris
Antonini omnia caduca fisco vindicantur, sed servato jure antique
liberis et parentibus, Ulpian, 17, 2. But from the rules of caducity
ascendants and descendants of the testator to the third degree were
excepted both by the lex Papia and by the constitution of Caracalla.
Constantine, A. D. 320, abolished the pains and penalties of celibacy
and childlessness, Cod> 8, 57, and Justinian formally and finally
abrogated the leges caducariae.
By substitutions, or alternative institutions, testators were able to
modify the course of accrual by Civil law (jus accrescendi), and, what
perhaps was still more interesting, to escape from the operation
of the laws of caducity, by which sometimes a whole inheritance
might fall into the clutches of the treasury.
§191. Post haec uideamus de §191. Let us now examine
legatis. quae pars iuris extra legacies, a kind of title which
propositam quidem materiam seems foreign to the matter in
uidetur; nam loquimur de his hand, for we are expounding titles
iuris figuris quibus per uniuer- whereby aggregates of rights are
sitatem res nobis adquiruntur ; acquired ; but we had at any rate
sed cum omni modo de testa- to treat of wills and heirs ap-
mentis deque heredibus qui Pomted by will, and it is natural
*• i-i i i- in close connexion therewith to
testamento mstituuntur locuti congider ^ ieg Q£ m& [for
sumus, non sine causa sequenti a l ^ &n £cce of a wjm
loco potent naec iuris materia
tractari. Inst. 2, 20, pr.
[DE LEGATIS.]
§ 192. Legatorum itaque § 192. Legacies are of four
genera sunt quattuor : aut enim kinds ; by vindication, by con-
per uindicationem legamus aut demnation, by permission, by
per damnationeni aut sinendi p reception*
modo aut per praeceptionem.
§193. Per uindicationem hoc § 193> A legacy by vindication
modo legamus TITIO uerbi gratia is m the following form: 'To
HOMINEM STICHVM DO LEGO; sed Lucius Titius I give and bequeath,
si alteruirura uerbum posi- say, my slave Stichus,' or only
ii. §§ 191-223.] LEGATORVM GENERA
227
turn sit, ueluti DO aut LEGO,
aeque per uiTidicationem lega-
tum est ; item, ut magis uisum,
est, si ita legatum fuerit SVMITO,
uel ita SIBI HABETO, uel ita CA-
PITO, aeque per uindicationem
legatum est.
§ 194. Ideo awtem per uindi-
cationem legatum appellatur,
quia post aditam hereditatem
statim ex iure Quiritium res
legatarii fit ; et si earn rem
legatarius uel ab herede uel ab
alio quocumque qui earn pos-
sidet petat, uindicare debet, id
est intendere suam rem ex iure
Quiritium esse.
§ 195. In eo solo dissentiunt
prudentes,quodSabinus quidem
et Cassius ceterique nostri prae-
ceptores quod ita legatum sit
statim post aditam hereditatem
putant fieri legatarii, etiamsi
ignoret sibi legatum j esse [di-
missum], serf posteaquam scierit
et - - legajtum, proinde
esse atque si legatum non esset ;
Nerua uero et Proculus ceteri-
qne illius scAolae auctores non
aliter putant rem legatarii fieri,
quam si uoluerit earn ad se
pertinere. sed hodie ex diui
Pii Antonini constitutione hoc
magis iure uti iddemur quod
Proculo placuit ; nam cum le-
gatus fuisset Latinus per uin-
dicationem coloniae, Deliberent,
inquit, decuriones an ad se
uelint pertinere, proinde ac si
uni legatus esset.
§ 196. -£"ae autem solae res per
uindicationem legantur recte
quae ex iure Quiritium ipsius
testatoris sunt. sed eas quidem
res quae pondere numero men-
one word need be used as, 'I give
or I bequeath ; ' and other terms
such as : ' Let him take,' ' Let him
have,' ' Let him seize,' equally
confer a legacy by vindication ac-
cording to the prevailing opinion.
§ 194. It is so called, because
immediately on the acceptance of
the inheritance the thing becomes
the Quiritarian property of the
legatee, and if he claims it from
the heir or any other possessor,
he ought to vindicate it, that is,
claim by action that he is owner
thereof by law of the Quirites.
§ 1 9 5. So far the two schools are
agreed, the only point in dispute
between them is this, that accord-
ing to Sabinus and Cassius and the
other authorities of my school,
what is thus left becomes the pro-
perty of the legatee immediately
on the acceptance of the inherit-
ance, even before he has notice of
the leeacy, and on notice and re-
pudiation by the legatee, the legacy
is cancelled. While Nerva and
Proculus and the jurists of that
school make the passing of the
property to the legatee depend on
his accepting the legacy ; and now
a constitution of the late emperor
Pius Antoninus seems to have es-
tablished the doctrine of Proculus
as the rule, for in the case of a Lati-
nus Junianus bequeathed by vindi-
cation to a colony, the Emperor
said, 'The decurions must deli-
berate whether they wish to be-
come owners as they would have
to do if the bequest was to an in-
dividual.'
§ 196. Only those things are
properly bequeathed by vindica-
tion which are the Quiritarian
property of the testator ; things,
however, estimated by weight,
228
DE LEGATIS
[11. §§ 191-223.
sura constant placuit sufficere
si mortis tempore sint ex iure
Quiritium testatoris, ueluti ui-
num oleum frumentum pecu-
niam numeratam. ceteras res
uero placuit utroque tempore
testatoris ex iure Quiritium
esse debere, id est et quo facere£
testamentum et quo moreretur ;
alioquin inutile est legaturn.
§ 197. Sed sane hoc ita est
iure ciuili. postea ueroauctore
Nerone Caesare senatusconsul-
tum factum est, quo cautum est,
ut si earn rem quisque legauerit
quae eius numquam fuerit,
proinde utile sit legatum, atque
si optimo iure relictum esset ;
optimum autem ius est per
damnationem legati, quo genere
etiam aliena res legari potest,
sicut inferius apparebit.
§ 198. Sed si quis rem suam
legauerit, deinde post testa-
mentum factum earn alienauerit,
plerique putant non solum iure
ciuili inutile esse legatum, sed
nee ex senatusconsulto confir-
mari. quod ideo dictum est,
quia et si per damnationem
aliquis rem suam legauerit eam-
que postea alienauerit, plerique
putant, licet ipso iure debeatur
legatum, tamen legatarium pe-
tentem posse per exceptionem
doli mali repelli quasi contra
uoluntatem defuncti petat.
§ 199. Illud constat, si duo-
bus pluribusue per uindicatio-
Jiem eadem res legata sit, siue
coniunctim siue disiunctim, et
omnes ueniant ad legatum,
partes ad singulos pertinere et
deficientis portionem collega-
tario adcrescere. coniunctim
autem ita legatur TITIO ET SEIO
HOMINEM STICHVM DO LEGO;
number, or measure, need only
be the Quiritarian property of the
testator at the time of his death,
for instance, wine, oil, corn, ready-
money : other things are required
to be the testator's Quiritarian
property at both periods, both at
the time of his death and at the
time of making his will, or the
legacy is void.
§ 197. However, this is only
the civil law. In later times, on
the proposition of Nero, a senatus-
consult was passed, providing that
if a testator bequeathed a thing
which never belonged to him, the
bequest should be as valid as if it
had been made in the most favour-
able form ; the most favourable
form being by condemnation,
whereby the property of another
person may be bequeathed, as will
presently appear.
§ 198. If a man bequeath a
thing belonging to him, and after-
wards aliene it, most jurists hold
that the bequest is not only
avoided at civil law, but does not
obtain validity by the senatu scon-
suit, the ground of this opinion
being that, even when a thing is
bequeathed by condemnation and
afterwards aliened, although the
legacy is due ipso jure, a claim
to it, as most jurists hold, may
be repelled by the plea of fraud,
as contravening the testator's in-
tention.
§ 199. It is a settled rule, that
if the same thing be bequeathed
by vindication to two or more
persons, whether jointly [in the
same sentence] or severally [in
different sentences], and all claim
the legacy, each is only entitled
to a ratable part, but a lapsed
portion accrues to the co-legatees.
A joint bequest is as follows :
n. §§191-223.1 LEGATORVM GENERA
« « J
229
disiunctim ita L. TITIO HOMINEM
STICHVM DO LEGO. SEIO EVNDEM
HOMINEM DO LEGO.
§ 200. Ulud quaeritur, quod
sub condi clone per uindica-
tionem legatum est, pendente
condicione cuius sit. nostri
praeceptores heredis esse putant
exemplo statuliberi, id est eius
serui qui testamento sub aliqua
condicione liber esse iussus est ;
quern constat interect heredis
seruum esse. sed diuersae scho-
lae auctores putant nullius in-
terim earn rem esse ; quod
multo magis dicunt de eo quod
[sine condicione] pure legatum
est, antequam legatarius ad-
mittat legatum.
§ 201. Per damnationem hoc
modo legamus HERES MEVS
STICHVM SERVVM MEVM DARE
DAMNAS ESTO ; sed et si DATO
scriptum fuerit, per damna-
tionem legatum est.
§ 202. Eoque genere legati
etiam aliena res legari potest,
ita, ut heres red im ere (?'em) et
praestare aut aestimationem
eius dare debeat.
§ 203. Ea quoque res quae in
rerum natura non est, si modo
futura est, per damnationem
legari potest, uelut FRVCTVS QVI
IN ILLO FVNDO NATI ERYNT, aut
QVOD EX ILL A ANCILLA NATVM
ERIT.
§ 204. Quod autem ita lega-
tum est, post aditam heredi-
tatem, etiamsi pure legatum est,
non ut per uindicationem lega-
tum continuo legatario adquiri-
tur, sed nihilo minus heredis
est. et ideo legatarius in per-
sonam agere debet, id est in-
' To Titius and Seius I give and
bequeath my slave Stichus ; ' a
several bequest as follows : ' To
Lucius Titius I give and bequeath
my slave Stichus. To Seius I
give and bequeath the same slave. '
§ 200. When a condition is an-
nexed to a bequest by vindication,
it is a question who, pending the
condition, is the owner: my school
say, the heir, as in the case of the
slave conditionally enfranchised
by will, who is admittedly in the
interim the property of the heir:
the other school assert that there
is no interim proprietor, and they
insist still more strongly that this
is so in the case of an uncon-
ditional simple bequest before the
acceptance by the legatee.
§ 201. A legacy by condemna-
tion is in the following form :
' Be my heir condemned to give
my slave Stichus,' or simply, 'Let
my heir give my slave Stichus.'
§ 202. By this form a testator
may bequeath a thing belonging
to another person, binding the
heir to purchase and deliver the
thing, or pay its value.
§ 203. A thing which does not
exist provided that it will exist may
be bequeathed by condemnation,
as the future produce of such and
such land, or the child to be born
of such and such female slave.
§ 204. A bequest in this form,
even though no condition is an-
nexed, unlike a bequest by vindi-
cation, is not forthwith on the
acceptance of the inheritance the
property of the legatee, but con-
tinues the property of the heir ;
hence the legatee must sue for it by
personal action, that is, lay claim
230
DE LEGATIS
[ii. §§ 191-223.
tendere heredem sibi dare opor-
tere ; et turn heres, si (res)
mancipi sit, mancipio dare aut
in iure cedere possessionemque
tradere debet; si nee mancipi
sit, sufficit si tradiderit. nam
si mancipi rem tantum tradi-
derit nee niancipauerit, usuca-
pione pleno iure fit legatarii ;
conpletur autem usucapio, sicut
alio quoque loco diximus, mobi-
lium quidem rerum anno,earum
uero quae solo tenentur biennio.
§ 205. Est et ilia differentia
huius {et} per uindicationem
legati, quod si eadem res duobus
pluribusue per damnationem
legata sit, siquidem coniunctim,
plane singulis partes debentur
sicut in illo {quod per} uindi-
c&tionem legatum est, si uero
disiunctim, singulis solid^m
de&etur. ita fit, ut scilicet
heres alteri rem, alteri aestima-
tionem eius praestare debeat.
et in coniuTictis deficientis
portio non ad collegatarium
pertinet, sed in hereditate re-
maned.
§ 206. Quod autem diximus
deficientis portionem in per
damnationem quidern legato in
hereditate retineri, in per uin-
dicationem uero collegatario
adcrescere, admonendi sumus
ante legem Papiam hoc iure
ciuili ita fuisse ; post legem
uero Papiam deficientis portio
caduca fit et ad eos pertinet
qui in eo testamento liberos
habent.
§ 207. Et quamuis prima
causa sit in caducis uindicandis
heredum liberos habentiurn,
deinde si heredes liberos non
habeant, legatariorum liberos
that the heir is bound to convey
it to him ; and in this case the
heir, if the thing is mancipable,
ought to convey it to him by man-
cipation or to surrender it before
a magistrate and deliver posses-
sion of it ; if not mancipable, mere
delivery of possession suffices : for
if a mancipable thing is merely
delivered without mancipation,
the legatee must acquire plenary
ownership by usucapion, and usu-
capion, as before mentioned, in the
case of movables requires a year's
possession, in the case of landed
property two years' possession.
§ 205. There is another differ-
ence between bequest by vindica-
tion and bequest by condemnation
herein, that if the same thing is
bequeathed to two or more by
condemnation, if they are named
jointly, each is entitled to a ratable
part, as in legacy by vindication ;
if severally, each is entitled to
the whole, and the heir is bound
to convey the specific thing to
one, and the value to the other ;
and in a joint bequest a lapsed
portion does not accrue to the
co-legatee, but belongs to the heir.
§ 206. The statement that a
lapsed portion in legacy by con-
demnation falls to the heir, and in
legacy by vindication accrues to
the co-legatee, be it observed, gives
the rule of the civil law before
the lex Papia ; but since the lex
Papia, a lapsed portion becomes
caducous, and belongs to the
legatees who have children.
§ 207. And although the first
title to a caducous legacy is that
of heirs with children, and the
second, if the heirs are childless,
of legatees with children, yet the
n. §§191-223.] LEGATORVM GENERA
231
habentium, tamen ipsa lege
Papia significatur, ut collega-
tarius coniunctus, si liberos
habeat, potior sit heredibus,
etiamsi liberos habebunt.
§ 208. Sed plerisque placuit,
quantum ad hoc ius quod lege
Papia coniunctis constituitur,
nihil interesse utrum per uindi-
cationem an per damnationem
legatum sit.
§ 209. Sinendi modo ita le-
ganiUS HERES MEVS DAMNAS
ESTO SINERE L. TITIVM HOMI-
NEM STICHVM SVMERE SIBIQVE
HABERE.
§ 210. Quod genus legati
plus quidem habet (quam) per
uindicationem legatum, minus
autem quam per damna^onem.
nam eo modo non solum suam
rem testator utiliter legare po-
test, sed etiam heredis sui ; cum
alioquin per uindicationem nisi
suam rem legare non potest,
per damnationem autem cuius-
libet extranei rem legare potest.
§ 211. Sed siquidem mortis
testa toris tempore res uel ipsius
testatoris sit uel heredis, plane
utile legatum est, etiamsi testa-
menti faciendi tempore neutrius
fuerit.
§ 212. Quodsi post mortem
testatoris ea res heredis esse
coeperit, quaeritur an utile sit
legatum. et plerique putant
inutile esse. quid ergo est ?
licet aliquis earn rem legauerit
quae neque eius umquam fuerit
neque postea heredis eius um-
quam esse coeperit, ex sena-
tusconsulto Neroniano proinde
uidetur ac si per damnationem
relicta esset.
§ 213. Sicut autem per dam-
lex Papia itself declares that in
a joint bequest a co-legatee with
children is to be preferred to heirs
even though they have children.
§ 208. And most jurists hold
that, as to the rights which the
lex Papia gives to joint legatees,
it makes no difference whether
the bequest is by vindication or
by condemnation.
§ 209. A bequest by permission
is in the following form : ' Be
my heir condemned to permit
Lucius Titius to take and to have
to himself my slave Stichus.'
§ 210. A bequest in this form
has a wider scope than one in the
form of vindication, but less than
one in the form of condemnation,
for hereby not only can the tes-
tator's property be effectively be-
queathed, but also that of the
heir, whereas by the form of vin-
dication the testator can only be-
queath his own property, and by
the form of condemnation he can
bequeath the property of any
stranger.
§ 211. If at the time of the
testator's death the thing thus be-
queathed belong to the testator or
the heir, the bequest is valid, even
though at the time of making the
will it belonged to neither.
§ 212. If it first belong to the
heir after the death of the testator
it is a question whether the bequest
is valid, and it is most generally
held to be invalid. However, even
though a thing bequeathed never
belonged to the testator or after
his death became the property of
the heir, by the senatusconsult of
Nero all bequests are put on the
same footing as a bequest by con-
demnation.
§213. Justasathingbequeathed
232
DE LEGATIS
[n.§§ 191-223.
nationem legata res non statim
post aditam hereditatem lega-
tarii efficitur, sed manet heredis
eo usque, donee is [heres] tra-
dendo uel mancipando uel in
iure cedendo legatarii earn fe-
cerit, ita et in sinendi modo
legato iuris est; et ideo huius
quoque legati nomine in per-
sonam actio est QVIDQVID HE-
KEDEM EX TESTAMENTO DARE
FACEEE OPORTET.
§ 214. Sunt tamen qui pu-
tant ex hoc legato non uideri
obligatum heredem,utmancipet
aut in iure cedat aut tradat, sed
sufficere, ut legatarium rem
sumere patiatur; quia nihil
ultra ei testator imperauit,quam
ut sinat, id est patiatur legata-
rium rem sibi habere.
§ 215. Maior ilia dissensio
in hoc legato inter uenit, si
eandem rem duobus pluribusue
disimictim legasti ; quidam
putant utrisque solidam deberi,
[sicutperuindicationem;] non-
nulli occupantis esse meliorem
condicionem aestimant, quia
cum eo genere legati damnetur
heres patientiam praestare, ut
legatarius rem habeat, sequitur,
ut si priori patientiam praesti-
terit et is rem sumpserit, se-
curus sit aduersus eum qui
postea legatum petierit, quia
neque habe£ rem, ut patiatur
earn ab eo sumi, neque dolo
malo fecit quominus earn rem
haberet.
§ 216. Per praeceptionem
hoc modo legamus L. TITIFS
HOMINEM STICHVM PRAECIPITO.
§ 217. Sed nostri quidem
praeceptores nulli alii eo modo
by condemnation does not im-
mediately on the acceptance of the
inheritance belong to the legatee,
but continues to belong to the
heir until by delivery, or man-
cipation, or surrender before the
magistrate, he makes it the pro-
perty of the legatee ; so it happens
in bequest by permission, and
accordingly this form of bequest
is ground to support a personal
action in the terms: 'Whatever
the heir is bound by the will to
convey or perform.'
§ 2 1 4. Although some hold that
a bequest in this form does not
bind the heir to mancipate or sur-
render before the magistrate, or
convey by tradition, but is satisfied
by his permitting the legatee to
take the thing, as the testator
only enjoined the heir to let him
have it.
§215. A more serious question
arises in another point respecting
this form of bequest : if the same
thing is bequeathed severally to
two or more, some hold that each
is entitled to the whole, [as in be-
quest by vindication (? condemna-
tion) ;] others hold that the first
occupant is alone entitled, be-
cause as this form of bequest only
condemns the heir to suffer the
legatee to have the thing, as
soon as the first occupant has been
suffered to take it, the heir is safe
against any subsequent claimant,
as he neither has possession of
the thing, so as to let it again
be taken, nor has fraudulently
parted with possession.
§ 2 1 6. A bequest by preception
is in the following form : ' Let
Lucius Titius take my slave
Stichus by preception [before
partition].'
§ 2 1 7. My school hold that such
a bequest can only be made to one
ii. §§ 191-223.] LEGATOKVM GENERA
233
legari posse putant, nisi ei qui
aliqua ex parte heres scriptus
esset ; praecipere enim esse
praecipuum sumere ; quod tan-
turn in eius persona procedit
qui aliqua ex parte heres insti-
tutus est, quod is extra portio-
nem hereditatis praecipuum
legatum habiturus sit.
§ 218. Ideoque si extraneo
legatum fuerit. inutile est lega-
tum ; adeo ut Sabinus existima-
uerit ne quidem ex (senatus)-
consulto Neroniano posse con-
ualescere : nam eo, inquit, se-
natusconsulto ea tantum con-
firmantur quae uerborum uitio
iure ciuili non ualent, non quae
propter ipsam personam lega-
tarii non deberentur. sed
luliano et Sexto placuit etiam
hoc casu ex senatusconsulto
confirmari ]egatum : nam ex
uerbis etiam hoc casu accidere,
ut iure ciuili inutile sit legatum,
inde manifestum esse, quod
eidem aliis uerbis recte legatur,
ueluti per uindicationem, p&r
damnationem, sinendi modo ;
tune autem uitio personae lega-
tum non ualere,cum ei legatum
sit cui nullo modo legari possit,
uelut peregrine cum quo testa-
menti factio non sit ; quo plane
casu senatusconsulto locus non
est.
§ 219. Item nostri praecep-
tores quod ita legatum est nulla
(alia) ratione putant posse
consequi eum cui ita fuerit
legatum quara iudicio familiae
erciscundae quod inter heredes
de hereditate erciscunda, id est
diuidunda, accipi solet ; officio
enim iudicis id contineri, ut ei
quod per praeceptionem lega-
tum est adiudicetur.
§ 220. Vnde intellegimus
of several co-heirs, because precep-
tion, or previous taking, can only
be attributed to a person who,
taking as heir, over and above his
portion as heir, and before partition
of the inheritance between the co-
heirs takes something as legatee.
§ 218. Therefore, if a stranger
is given a legacy in this form it
is void, and Sabinus held that
the flaw is not remedied by the
senatusconsult of Nero, for that
senatuscoiisult only cures verbal
flaws which make a bequest void
at civil law, not personal dis-
abilities of the legatee. Julian,
however, and Sextus held that
this bequest also is made valid
by the senatusconsult, as only
being avoided at civil law by a
verbal informality ; as appears
from the fact that the very same
person might take by the bequest
in another form, as in those
by vindication, condemnation, or
permission, whereas a personal
defect in the legatee only inva-
lidates the legacy, if the legatee
is a person totally disqualified
from taking any legacy whatever,
e. g. an alien, who is incapable of
taking anything under a will :
in which case (they contend) the
senatusconsult is clearly inap-
plicable.
§ 219. Again, my school hold
that in this form of bequest, the
only action by which a legatee
can recover is the action for
partition of an inheritance, the
judge's commission including a
power of adjudicating a thing
bequeathed by preception.
§ 220. From this it follows
234
DE LEGATIS
[IT. §§ 191-223.
nihil aliud secundum nostrorum
praeceptorum opinionem per
praeceptionem legari posse, nisi
quod testatoris sit ; nulla enim
alia res quam hereditaria de-
ducitur in hoc indicium, itaque
si non suam rem eo modo testa-
tor legauerit, iure quidem ciuili
inutile erit legatum ; sed ex
senatusconsulto confirmabitur.
aliquo tamen casu etiam alie-
nam rem (j^er) praeceptionem
legari posse fatentur ; ueluti si
quis earn rem legauerit, quam
creditori fiduciae causa manci-
pio dederit ; nam officio iudicis
coheredes cogi posse existimant
soluta pecunia luere earn rem,
ut possit praecipere is cui ita
legatum sit.
§ 221. Sed diuersae scholae
auctores putant etiam extraneo
per praeceptionem legari posse
proinde ac si ita scribatur TI-
TTVS HOMINEM STICHVM CAPITO,
superuacuo adieeta PBAE syl-
laba; ideoque per uindicatio-
nem earn rem legatam uideri.
quae sententia dicitur diui Ha-
driani constitutions confirmata
esse.
§ 222. Secundum hanc igitur
opinionem si ea res ex iure
Quiritium defuncti f uerit, potest
a legatario uindicari, siue is
unus ex heredibus sit siue ex-
traneus ; quodsi in bonis tantum
testatoris fuerit, extraneo qui-
dem ex senatusconsulto utile
erit legatum, heredi uero fa-
miliae erciscundae iudicis officio
praestabitur ; quodsi nullo iure
fuerit testatoris, tarn heredi
quam extraneo ex senatuscon-
sulto utile erit.
that, according to my school,
nothing can be bequeathed by
preception but what belongs to
the testator, for nothing but what
belongs to the inheritance forms
the subject of this action. If,
then, a thing that does not belong
to the testator is bequeathed in
this form, the bequest is void at
civil law, but made valid by the
senatusconsult. In one case they
admit that another person's pro-
perty may be bequeathed by pre-
ception, for instance, if a man
bequeath a thing which he has
conveyed by fiduciary mancipa-
tion to a creditor, as it is within
the powers of the judge to order
the co-heirs to redeem the pro-
perty by payment of the mort-
gage debt, and thus enable the
legatee to exercise his right of
preception.
§ 221. The other school hold
that a stranger may take a be-
quest in the form of preception
just as if it were in the form :
'Let Titius take my slave Stichus,'
the addition [by preception, or,
before partition] being mere sur-
plusage, and the bequest being
in effect in the form of vindica-
tion ; and this opinion is said to
be confirmed by a constitution of
the late emperor Hadrian.
§ 222. According to this view,
if the thing was the Quiritarian
property of the defunct, it can be
recovered in a vindicatio by the
legatee, whether an heir or a
stranger, but if it was only the
bonitarian property of the tes-
tator, a stranger will recover the
bequest under the senatusconsult,
an heir by the authority of the
judge in an action for partition of
inheritance. But if it was in no
sense the property of the testator,
either an heir or a stranger may re-
cover it under the senatusconsult.
ii. §§ 191-223.] LEGATORVM GENERA 235
§223. Sine tamen heredibus §223. Whether they are heirs,
secundum nostrorum opinio- according to my school, or
nem, siue etiam extraneis se- strangers, according to the other,
cundum illorum opinionem, if two or niore legatees have the
duobus pluribusue eadem res same thinS bequeathed to them
coniunctim aut disiunctim le- Jointly or severally, each legatee
gata fuerit,singuli partes habere !s only entitled to a ratable Por'
debent. tlon'
§§ 194, 19^ Justinian seems to accept the Sabinian view that an
unconditional legacy is acquired by the legatee immediately upon
the heir's entrance on the inheritance, without his assent or even
his knowledge, though he may subsequently reject it : in the latter
case the effect is the same as if the right had never been acquired.
So also Justinian clearly takes the Sabinian view on the question
of interim ownership mentioned in § 200. Cf. Dig. 8, 6, 19, 1.
The testamenti factio passiva of municipalities, that is, their capacity
as juristic persons to be made heirs or legatees, has already been
noticed, 1 §§ 197-200, comm. § 238, comm.
§§ 196, 197. Cf. Si ea res, quae non fuit utroque tempore testatoris
ex jure Quiritium, per vindicationem legata sit, licet jure civili non
valeat legatum tamen senatusconsulto Neroniano firmatur quo cautum
est ut quod minus pactis (aptis ?) verbis legatum est perinde sit ac
si optimo jure legatum esset : optimum autem jus legati per damna-
tionem est, Ulpian, 24, 11 a.
By this senatusconsult of the Emperor Nero the four forms of
legacy are not entirely abolished, but the importance of their distinc-
tions is very much diminished. A legacy, by whatever form be-
queathed, is henceforth always recoverable, provided it could have been
effectively bequeathed in any form. As Sc. Neronianum made legatum
per vindicationem transformable into legatum per damnationem, it
made legatum per praeceptionem a species of Vindicatio, similarly
transformable, and capable, therefore, of conferring res aliena as
well as res testatoris not only on heres but also on non-heres. A
fortiori it made legatum sinendi modo, a species of legatum per
damnationem, capable of bequeathing res aliena.
Subsequently a constitution of Constantine, Constantius, and
Constans, A. D. 339, which, as we have already seen, abolished the
necessity of formal terms in instituting an heir, dispensed with
them also in the remaining testamentary dispositions : Et in postre-
mis ergo judiciis ordinandis amota erit sollennium sermonum neces-
sitas, Cod. 6, 23, 15, 2. In legatis vel fidei commissis verborum
necessaria non sit observantia, ita ut nihil prorsus intersit, quis talem
voluntatem verborum casus exceperit aut quis loquendi usus effu-
derit, Cod. 6, 37, 21 : apparently a part of the same constitution.
236 DE LEGATIS [n. §§ 191-223.
Three years afterwards, a constitution of Constantius and Con-
stans abolished all legal formulas in the following terms : Juris
formulae, aucupatione syllabarum insidiantes, cunctorum actibus
penitus amputentur, Cod. 2, 57, 1. 'Legal formulas, with snares
in every syllable to make them treacherous, in every occasion are
to be utterly abolished.'
Finally, Justinian enacted ut omnibus legatis una sit natura,
Inst. 2, 20, 2, that all bequests should be of one nature ; and
allowed them to be recovered by personal action or by real action also,
at the option of the legatee, if ownership or jus in re in a specific
thing was directly bequeathed to them ; for some subjects are essen-
tially incapable of recovery by real action ; e. g. if a determinate
quantity of anything estimated by number, measure, or weight, were
bequeathed by a testator who had none in his possession at the time
of his death, § 196, the heir would be bound to procure and convey
it or its value to the legatee, § 202, but there would be no specific
thing in existence which the legatee could recover by real action.
§ 199. Co-legatees per vindicationem would be each entitled to the
whole except for the concurrence of the other co-legatees. Ac-
cordingly, if one fails the others benefit by Accretio, Dig. 32, 80.
Co-legatees per damnationem, if conjunctim, are never entitled to more
than a ratable portion, and failure of one benefits the heir : but
co-legatees of this kind, if disjunctim, are entitled to as many wholes
as there are co-legatees, § 205. Co-legatees, if sinendi modo, were
a class of co-legatees per damnationem, but if the bequest was dis-
junctim, and one or more failed to take, only the first occupant was
entitled, § 215.
§ 207. The loss of the legacies, which they otherwise would have
acquired under the lex Papia, was one of the penalties whereby
the legislator endeavoured to deter heirs and legatees from under-
taking secret trusts (fideicommissum taciturn) contrived for the
purpose of evading some disqualification. In fraudem juris fidem
accommodat, qui vel id quod relinquitur vel aliud tacite promittit
restituturum se personae quae legibus ex testamento capere pro-
hibetur, sive chirographum eo nomine dederit, sive nuda polli-
citatione repromiserit, Dig. 34, 9, 10, pr. (from a treatise of Gaius
on the lex Julia et Papia). In England secret trusts one of the
causes which led to the passing of the statute of Uses and Trusts.
At Kome secret trusts, tacita fideicommissa (on which Gaius wrote
a treatise, Dig. 34, 9, 23), were discouraged by being made one of the
cases of Ereption for un worthiness, § 151, comm. Si quis in fraudem
tacitam fidem accommodaverit, ut non capienti fideicommissum resti-
tuat, nee quadrantem eum deducere senatus censuit, nee caducum
vindicare ex eo testamento si liberos habeat, Ulpian, 25, 17. 'An heir
ii. §§ 224-228.] AD LEGEM FALCIDIAM
237
who lends his assistance to the evasion of the law by the acceptance
of a secret trust in favour of a disqualified beneficiary loses by decree
of the senate his right under the lex Falcidia to retain one fourth
of his inheritance, and to claim the caducous legacies, to which by
the lex Papia he would have been entitled as a father of children.'
§ 215. A passage in the Digest, 33, 2, 14, makes this depend on
the intention of the testator. The words — per vindicationem seem
to have been introduced into the MS. by mistake for per damna-
tionem, cf. §§ 199, 205.
[AD LEGEM
§ 224. Sed oHm quidem lice-
bat totum patrimonium legatis
atque libertatibus erogare nee
quicquam heredi relinquere
praeterquam inane nomen here-
dis ; idque lex xn tabularum
permittere uidebatur, qua caue-
tur, ut quod quisque de re sua
testatus esset, id ratum habe-
retur, his uerbis VTI LEGASSIT
SVAE EEJ, ITA ivs ESTO. quare
qui script! heredes erant, ab
hereditate se abstinebant, et
idcirco plerique intestati morie-
bantur. Inst. 2, 22, pr.
§ 225. Itaque lata est lex
Furia, qua, exceptis personis
quibusdam, ceteris plus mille
assibus legatorum nomine mor-
tisue causa capere permissum
non est. sed et haec lex non
perfecit quod uoluit ; qui enim
uerbi gratia quinque milium
aeris patrimonium habebat, po-
terat quinque hominibus singu-
lis millenos asses legando totum
patrimonium erogare.
Inst. 1. c.
§ 226. Ideo postea lata est
lex Voconia, qua cautum est,
ne cui plus legatorum nomine
mortisue causa capere liceret
quam heredes capereni. ex qua
lege plane quidem aliquid uti-
que heredes habere uidebantur ;
sed tamen fere uitium simile
FALCIDIAM.]
§224. By the ancient law a tes-
tator might exhaust his whole es-
tate by bequests and enfranchise-
ments, and leave nothing to the
heir but an empty title ; and
this privilege seemed granted by
the Twelve Tables, which con-
cede an unlimited power of tes-
tamentary disposition, in these
terms : ' As a man's last bequests
respecting his property are, so
let it be law : ' hence the persons
who were appointed heirs de-
clined to accept the inheritance,
and people commonly died intes-
tate.
§ 225. This led to the enact-
ment of the lex Furia, whereby,
excepting certain specified classes,
a thousand asses was made the
maximum that a legatee or donee
in contemplation of death was
permitted to take. This law,
however, failed to accomplish its
purpose, for a testator with an
estate of, say, five thousand asses,
might leave to five legatees a
thousand asses apiece, and strip
the heir of the whole.
§ 226. This occasioned the en-
actment of the lex Voconia, which
provided that no legatee or other
person taking by reason of death
should take more than the heirs
took. By this law, some portion
at all events was secured to the
heir, but, like the former, it could
238 DE LEGATIS [n. §§ 224-228.
nascebaiur ; nam in multas be defeated, for the multitude of
legatariorum personas distri- legatees among whom a man could
buto patrimonio poterat {testa- distribute his estate might leave
tor} adeo heredi minimum re- so nttle to tne beir as to make
linquere, ut non expediretheredi {i not worth his while to under-
huius lucri gratia totius heredi- take the burden of the whole
tatis onera sustinere. inheritance.
Inst. 1. c.
§ 227. Lata est itaque lex § 227. At last, the lex Falcidia
Falcidia, qua cautum est, ne was enacted, prohibiting the be-
plus ei legare liceat quam do- quest of more than three fourths
draTitem. itaque necesse est, of an estate, in other words, se-
nt heres quartam partein here- curing for the heir one fourth of
ditatis habeat. et hoc nunc the inheritance, and this is the
iure utimur. Inst. 1. c. rule of law now in force-
§ 228. In libertatibus quo- § 228. The enfranchisement of
que dandis nimiam licentiam slaves was likewise kept within
conpescuit lex Fufia Caninia, limits by the lex Fufia Caninia,
sicut in primo commentario as mentioned in the first volume
rettulimus. of these Institutions. 1 §§ 42-46.
§ 224. A slightly different form of this celebrated ordinance is
given by the Auctor ad Herennium : Paterfamilias uti super familia
pecuniave sua legaverit ita jus esto, 1, 13, 23; also Cic. de Invent.
2, 50, 148.
§ 225. The lex Furia testamentaria, which is referred to by Cicero,
although it imposed on the legatee who took more than a thousand
asses a penalty of four times the amount of the excess, which was re-
coverable by manus injectio pura, 4 § 23, yet is instanced byUlpian(l, 2)
as a minus quam perfecta lex, because, though it imposed a penalty on
the legatee, it did not invalidate the prohibited bequest. In a minus
quam perfecta lex the legislator, instead of declaring invalid the dis-
position that he wished to discourage, or conferring on the person
burdened by such disposition a counter right (exceptio) whereby he
might defeat the claim of the person who sought to enforce such dis-
position, merely imposed on the creditor under such a disposition a
penalty if he either enforced his claim by suit or if he even accepted
voluntary payment from the person who stood in the relation of
debtor. Minus quam perfecta lex est quae vetat aliquid fieri et si
factum sit non rescindit sed poenam injungit ei qui contra legem
fecit : qualis est lex Furia testamentaria quae plus quam mille assium
legatum mortisve causa prohibet capere praeter exceptas personas,
et adversus eum qui plus ceperit quadrupli poenam constituit,
Ulpian, 1, 2. So the lex Furia de sponsu, 3 § 121, which perhaps
was another clause of the enactment which contained the lex Furia
testamentaria, imposed a penalty on the creditor who exacted more
ii. §§ 224-228.] AD LEGEM FALCIDIAM 239
than a ratable portion of a guaranteed debt from a single sponsor,
4 § 22. By the lex Falcidia, 40 B. c., on the contrary, a lex perfecta
which superseded the lex Furia testamentaria, a legacy was abso-
lutely null and void (ipso jure) beyond a certain extent and the
heres as debtor could not be forced to pay more than the sum pre-
scribed, a rule which may be expressed by the maxim, legata ipso
jure minuuntur : and the Epistola Hadriani, 3 § 121, a law passed for
the protection of the kind of surety which superseded sponsores and
fidepromissores, conferred a counter right called Beneficium divi-
sionis on the fidejussor or surety who was sued for more than a
ratable portion of the debt, enabling him to defeat the valid claim
of the creditor by the exceptio divisionis. Under the lex Furia
testamentaria the heres could neither defend himself by alleging
the absolute nullity of the excessive bequest (ipso jure) nor by
pleading an opposing right (exceptio) whereby the valid claim of
the legatee might be counteracted. 4 § 115, comm.
Assuming that the lex Furia de sponsu and the lex Furia testa-
mentaria were two clauses of the same enactment, the lex Furia
may have had the singular destiny of having provoked by antagonism
the introduction of two new institutions in Roman jurisprudence.
The desire of evading its penalties relating to sponsio may have been
a cause of fidejussio ; and the desire of evading its penalties relating
to legata a stimulus to the invention of fideicommissa.
The exceptae personae of the lex Furia testamentaria were the
cognates of that ascendant to the sixth degree with sobrino natus,
or second cousin of the seventh, Ulpian, 28, 7; Vat. Fragm. 301.
§ 226. The lex Voconia, supposed to have been passed by the
tribune Quintus Voconius Saxa, 169 B. c., contained a provision to
the effect that a woman could not be instituted heiress to a classicus,
or person scheduled in the first class of the census, i. e. registered
as owner of property to the amount of a hundred thousand sesterces
and upward, § 274 ; and by another provision of this enactment,
mentioned in the text, it was provided the utmost amount that any
one, male or female, could take as legatee, should be limited to half
the value of the inheritance. This disposition of the lex Voconia was
probably the origin of the form of legacy called partitio, § 254, whereby
a testator bequeathed as legacy an aliquot part of his inheritance.
A rich testator with one heres would leave to a woman by way of
legacy one half, with two heredes one third, of the inheritance, and
so on, if he wished to leave her the utmost the law permitted.
The result of the lex Voconia, coupled with the rules of preter-
mission and intestacy, is the following : a daughter might take half
her father's estate either as legatee (partiaria, § 254), or, if preter-
mitted (praeterita), as heiress, § 124. If she was filia unica, she
240 DE LEGATIS [n. §§ 229-245.
might take the whole estate as heiress, if her father died intestate :
but Eomans were very averse to dying intestate ; and in this event
she would not have had a testamentary guardian and so have been
much hampered in the free disposition of her property, at least till
the agnatic guardianship of women was abolished.
§ 227. The terms of the principal clause of the lex Falcidia, passed
B. c. 40, are given in the Digest 35, 2, 1, pr. 'Every Roman citizen
who, after this law passes, makes a will, is entitled and empowered to
give and bequeath whatever money he likes to any Roman citizen in
accordance with the laws of Rome, provided that such bequest leave
at least one fourth of the inheritance to be taken under that will by
the heirs. Such bequests the legatees are permitted to accept without
penalty (sine fraude) (an allusion to the penalty of the lex Furia), and
the heir therewith charged is bound to pay.'
The words limiting the operation of the lex Falcidia to wills
executed after the date of its enactment take this law out of the
general rule respecting the temporal limits of the application of
laws in the event of legislative innovations. The general rule for
determining, on any change of the law, whether a given right is to
be governed by the older or the newer law, is the principle that
a new law should have no retroactive influence on vested rights
(acquired rights), but should govern all that have yet to vest. Now
under a will no one has vested rights, whatever his expectations,
before the death of the testator. This date fixes the possible opening
of the succession (vocatio heredis, delatio hereditatis), the vesting of
the rights of the heir and also of the legatee (legatorum dies cedens,
§ 244), unless this is postponed till a later date, and determines the
law by which they are governed. By the general rule, then, the
lex Falcidia would have applied to all wills whose testators died after
its enactment, at whatever date they were executed. The legislator
wished to disarm the opposition of those who had made their wills
by excepting them from its operation ; though in many cases the
lex Falcidia would be less rigorous than the lex Furia and lex
Voconia, which it superseded, and testators would be glad to revise
their testamentary dispositions. Savigny, System, § 394.
Some illustrations of the joint operation of the lex Falcidia and
the Sc. Pegasianum, or rather the Sc. Trebellianum as modified by
Justinian, will be presently given. § 259, comm.
[DE INVTILITER EELICTIS LEQATIS.]
§ 229. Ante heredis institu- § 229. A legacy bequeathed be-
tionem mutiliter legatur, sci- fore an heir is instituted is void,
licet quia testamenta uim ex because a will derives its opera-
institutione heredis accipiunt, tion from the institution of an
ii. §§229-245.] DE POENAE CAVSA LEGATIS
241
et ob id uelut caput et funda-
mentum intellegitur totius te-
stamenti heredis institutio.
Inst. 2, 20, 34.
§ 230. Pari ratione nee li-
bertas ante heredis institutio-
nem dari potest. Inst, 1. c.
§ 231. Nostri praeceptores
nee tutorem eo loco dari posse
existiman£ ; sed Labeo et Pro-
culus tutorem posse dari, quod
nibil ex hereditate erogatur
tutoris datione.
~$Ti32. Post mortem quoque
heredis inutiliter legatur, id est
hoc modo CVM HERES MEYS MOR-
TVVS ERIT, DO LEGO, aut DATO.
ita autem recte legatur CVM
HERES <M£FS> MORIJ5TVR, quia
non post mortem heredis re-
linquitur, sed ultimo uitae eius
tempore, rursum ita non potest
legari PRIDIE QVAM HERES MEVS
MORIETVR ; quod non pretiosa
ratione reoeptum uidetur.
Inst. 2, 20, 35.
§ 233, Eadem et de liberta-
tibus dicta intellegemus.
§ 234. Tutor uero an post
mortem heredis dari possit
quaerentibus eadem forsitaw
poterit esse quaestio quae de
{eo) agitatur qui ante heredum
institutionem datur.
heir, and accordingly the insti-
tution of an heir is deemed the
beginning and foundation of a
will.
§ 230. For the same reason a
slave cannot be enfranchised
before an heir is appointed.
§ 231. Nor, according to my
school, can a guardian be nomi-
nated before an heir is appointed :
according to I^abeo and Proculus
he may, because no part of the
inheritance is given away by the
nomination of a guardian.
§ 232. A bequest to take effect
after the death of the heir is
void, that is to say, if limited in
the following terms ; ' After my
heir's death I give and dispose,'
or, 'let my heir give.' The
following limitation is valid :
' When my heir dies,' because
the legacy is not to take effect
after his death, but at the last
moment of his life. A bequest
to take effect on the day pre-
ceding the death of the successor
is void. This distinction reposes
on no valid reason.
§ 233. The same rules apply to
enfranchisements.
§ 234. Whether a guardian can
be nominated after the death of
the hen', probably admits of the
same divergence of opinion as
whether he can be nominated
before the appointment of the
heir.
[DE POENAE CAVSA RELICTIS LEGATIS.]
§ 235. Poenae quoque no-
mine inutiliter legatur. poenae
autem nomine legari uidetur
quod coercendi heredis causa
relinquitur, quo magis heres
aliquid faciat aut non faciat;
ueluti quod ita legatur si HERES
MEVS F1LIAM SFAM TITIO IN
M A.TRIMONIVM CONLOCAVERIT, X
§ 235. Penal bequests are void.
A penal bequest is one intended
to coerce the heir to some per-
formance or forbearance. For
instance, the following: 'If my
heir give his daughter in mar-
riage to Titius, let him pay ten
thousand sesterces to Seius : '
and the following: 'If thou do
242
DE LEGATIS
[ir.§§ 229-245.
(MILT A) SEIO DATO, uel ita si
FILIAM TITIO IN MATRIMONIVM
NON CONLOCAVERIS, X MILIA
TITIO DATO ; sed et si heredem,
(si) uerbi gratia intra biennium
monumentum sibi non fecerit,
x (milia) Titio dare iusserit,
poenae nomine legatum est ; et
denijque ex ipsa definitione
multas similes species — |
possumus. Inst. 2, 20, 36.
§ 236. Nee libertas quidem
poenae | nomine dari potest,
quamuis de ea re fuerit quae-
situm.
§ 237. De tutore uero nihil
possumus quaerere, quia non
potest datione tutoris heres con-
pelli quicquam facere aut non
facere ; ideoque { } datur,
poenae nomine tutor datus fue-
rit, magis sub condicione quam
poenae nomine datus uidebitur.
§ 238. Incertae personae le-
gatum inutiliter relinquitur.
incerta autem uidetur persona
quam per incertam opinionem
animo suo testator subici^uefott
cum ita legatum sit QVI PRIMVS
AD FVNVS MEVM VENEKIT El
HERES MEVS X MILIA DATO.
idem iuris est, si generaliter
omnibus legauerit QVICVMQVE
AD FVNVS MEVM VENERIT. \n
eadem causa est quod ita relin-
quitur QVICVMQVE FILIO MEO IN
MATRIMONIVM FILIAM SVAM
CONLOCAVERIT, El HERES MEVS
x MILIA DATO. illud quoque [in
eadem causa est] quod ita re-
linquitur QVI POST TESTAMEN-
TVM (SCRIPTVM PRIMl) CON-
SVLES DESIGNATI ERVNT, aeque
incertis personis legari uidetur.
et denique aliae multae huius-
not give thy daughter in mar-
riage to Titius, do thou pay ten
thousand sesterces to Titius : '
and the following: 'If my heir
does not, say, within two years
build me a monument, I order
him to pay ten thousand sesterces
to Titius ; ' all these are penal
bequests, and many similar in-
stances may be imagined in ac-
cordance with the definition.
§ 236. Freedom cannot be left
as a penal bequest, although the
point has been disputed.
§ 237. The nomination of a
guardian cannot give rise to the
question, because the nomination
of a guardian cannot be a means
of compelling an heir to any per-
formance or forbearance, and a
penal nomination of a guardian
is inconceivable : if, however, a
nomination were made with this
design, it would be deemed
rather conditional than penal.
§ 238. A bequest to an un-
certain person is void. An un-
certain person is one of whom the
testator has no certain concep-
tion, as the legatee in the follow-
ing bequest: 'Any one who comes
first to my funeral, do thou, my
heir, pay him ten thousand ses-
terces : ' or a whole class thus
defined : ' Every one who comes to
my funeral : ' or a person thus de-
fined : ' Any one who gives his
daughter in marriage to my son,
do thou, my heir, pay him ten
thousand sesterces : ' or persons
thus defined: 'Whoever after
my will is made are the first
consuls designate : ' all these
persons are uncertain, and many
others that might be instanced.
A bequest, qualified by a definite
description, to an uncertain per-
son is valid, as the following:
ii. §§ 229-245.] DE INVTILIBVS LEGATIS
243
modi species sunt. sub certa
uero demonstratione inceitae
personae recte legatur, ueluti
EX CO&NATIS MEIS QVI NVNC
SVNT QVI PRIMVS AD FVNVS
MEVM VENEEIT, El X MILIA
HEEES MEVS DATO.
Inst. 2, 20, 25.
§ 239. Libertas quoque non
uidetur incertae personae dari
posse, quia lex Fufia Caninia
iubet nominatimseruosliberari.
§ 240. Tutor quoque certus
dari debet.
§241. Postumo quoque alieno
inutiliter legatur. (Ekt) autem
alienus postumus qui natus in-
ter suosheredes testatori futurus
non est. ideoque ex emancipate
quoqae filio conceptus nepos
extraneus postumws est ; item
qui in utero est eius quae iure
ciuili non intellegitur uxor, ex-
traneus postumus patris intel-
legitur. Inst. 2, 20, 26.
§ 242. Ac ne heres quidem
potest institui postumus alienu s ;
est enim incerta persona.
Inst. 2, 20, 28.
§ 243. Cetera uero quae supra
diximus ad legata proprie per-
tinent, quamquam non inme-
rito quibusdam placeat poenae
nomine heredem institui non
posse; nihil enim interest,
utrum legatum dare iubeatur
heres, si fecerit aliquid aut non
fecerit, an coheres ei adiciatur,
quia tarn coheredis adiectione
quam legati datione conpellitur,
ut aliquid contra propositum
suum faciat aut non faciat.
§ 244. An ei qui in potestate
sit eius quern heredem institui-
mus recte let/emus, quaeritur.
Seruius recte legari putat, sed
'Of all my kindred now alive
whoever first comes to my
funeral, do thou, my heir, pay
him ten thousand sesterces.'
§ 239. Freedom cannot he be-
queathed to an uncertain person,
because the lex Fufia Caninia re-
quires slaves to be enfranchised
by name.
§ 240. An uncertain person
cannot be nominated guardian.
§ 241. An afterborn stranger
cannot take a bequest: an after-
born stranger is one who on his
birth will not be a self-successor
to the testator : thus a grandson
by an emancipated son is an
afterborn stranger to his grand-
father, and a child in the womb
of one who is not regarded as a
wife by civil law is an afterborn
stranger to his father.
§ 242. An afterborn stranger
cannot even be appointed heir,
because he is an uncertain per-
son.
§ 243. Though what was said
above of penal dispositions refers
properly to bequests, yet a penal
institution of an heir is justly
considered by some authorities
to be void, for it makes no dif-
ference whether a legacy is left
away from an heir on his doing
or failing to do something, or
a co-heir is appointed, as the
addition of a co-heir is as effec-
tive a means of coercion as the
giving a legacy, to force an heir
to do or not do something against
his inclination.
§ 244. Whether a legacy can
be lawfully left to a person in the
power of the heir is a question.
Servius holds that the bequest
E 2
244
DE LEGATIS
[n. §§ 229-245.
euanescere legatum, si quo tem-
pore dieslegatorumcedere solet,
adhuc in potestate sit ; ideoque
siue pure legatum sit et uiuo
testatore in potestate heredis
esse desierit, siue sub condi-
cione et ante condicionem id
aceiderit, deberi legatum. Sa-
binus et Cassius sub condicione
recte legari, pure non recte,
putant; licet enim uiuo testa-
tore possit desinere in potestate
heredis esse, ideo tamen inutile
legatum intellegi oportere, quia
quod nullas uires habiturum
foret, si statim post testamen-
tum factum decessisset testator,
hoc ideo ualere quia witam
longius traxerit, absurdum es-
set sed diuersae scholae auc-
tores nee sub condieione recte
legari, quia quos in potestate
habemus eis non magis sub
condicione quam pure debere
possumus. List. 2, 20, 32.
§ 245. Ex diuerso constat ab
eo qui in potestate (tua} est
herede institute recte tibi legari;
sed si tu per eum heres exti-
teris, euanescere legatum, quia
ipse tibi legatum debere non
possis; si uero films emanci-
patus aut seruus manumissus
erit uel in alium translatus, et
ipse heres extiterit aut alium
fecerit, deberi legatum.
Inst. 2, 20, 33.
is valid, though it lapses if he
continue under power at the date
when the legacies vest ; and
whether the bequest is absolute
and the legatee ceases to be
subject to the power of the heir
in the lifetime of the testator, or
whether it is conditional and he
is liberated before the condition
is accomplished, in either case
he holds the legatee entitled to
the legacy. Sabinus and Cassius
hold that a conditional bequest
is valid, an absolute bequest in-
valid, because though the legatee
may cease to be subject to the
heir in the lifetime of the tes-
tator, yet the bequest must be
deemed invalid because it would
be absurd to hold that a disposi-
tion which would be void if the
testator died immediately after
making his will, can acquire vali-
dity by the mere prolongation of
his life. Theotherschool of jurists
hold that even a conditional be-
quest is invalid, because a person
under powar is as incapable of
having conditional as absolute
legal claims against his superior.
§ 245. Conversely it is certain
that if a person in your power is
appointed heir, he can be charged
with payment of a legacy to you ;
though if you inherit by his
means the legacy fails, because
you cannot be bound to pay
yourself; but if your son is
emancipated, or your slave manu-
mitted or aliened, and either he
himself becomes heir or he makes
the person to whom he is alienated
heir, you are entitled to the legacy.
§§ 229-236. The rules requiring that bequests should follow the
institution of the heir, and should be limited to take effect in the life-
time of the heir, and prohibiting penal bequests, were abolished by
Justinian, as may be seen by comparing the corresponding passages
in his Institutes.
§ 238. Justinian abolished the rule prohibiting bequests to un-
ii. §§229-245.] DE INVTILIBVS LEGATIS 245
certain persons, Cod. 6, 48. Corporations or Universitates are certae
personae, not incertae as we might imagine from their mention in this
constitution and elsewhere, the conception of a juristic person not
being very distinctly formed by the Eoman jurists. But though, as
juristic persons, they were capable in general of property, yet, perhaps
from a feeling of the impolicy of the principle of Mortmain, they were
incapable of taking either hereditas or legatum. Of. Ulpian, 22, 5
' Nee municipia nee municipes heredes institui possunt, quoniam in-
certum corpus est, et neque cernere universi neque pro herede gerere
possunt ut heredes fiant : senatusconsulto tamen concessum est, ut
a libertis suis heredes institui possint. Sed ndeicommissa hereditas
municipibus restitui potest : denique hoc senatusconsulto prospectum
est.' Leo, A. D. 469, made municipalities capable of taking an in-
heritance (hereditas), and by the legislation of Nerva and Hadrian all
municipalities (civitates) had become capable of taking bequests
(legatum), Ulpian, 24, 18. By Justinian's time Churches and
Foundations as well as Municipalities had become capable of taking
an inheritance or a legacy > but not corporations generally, except by
special permission, Cod. 6, 24, 8. 1 §§ 197-200, comm.
§ 242. Although an afterbom stranger could not be appointed
heir by the civil law, yet the praetor sustained such an appointment,
and gave him the bonorum possessio. Justinian permitted him to
take the hereditas, Inst. 3, 9 pr. After Justinian's legislation, Cod.
6, 48, but little remained of the once important disqualification of
incerta persona except the rule, that a succession, testamentary or
intestate, could not belong to a postumus alienus, unless he was
begotten (conceptus) in the lifetime of the heritage-leaver.
§ 244. Dies legati cedens, or the time from which a legatee has an
interest in the legacy, contingent on the inheritance being entered
on, which in the event of his death is transmissible to his heredes,
dated, as we have seen, in the time of Gaius from the opening of the
testator's will : dies veniens, the acquisition of a legacy, dates from
aditio of the heres. It does not require acceptance or even know-
ledge of the legacy, § 195. In reference to contracts these terms
mean the date when an obligation vests and the date when payment
may be exacted. On dies cedens an obligation is acquired : it forms
part of the creditor's patrimony, and is capable of novation, cession,
acceptilation : on dies veniens or actio nata, payment may be exacted
and is recoverable by suit. The distinction between dies cedens and
dies veniens in obligations arises when a dies adjecta or future date
of performance is contained in the lex contractus.
A right to a conditional legacy vested when the condition was
accomplished. Herein a conditional legacy differs from a conditional
contract. A fulfilled condition of a contract or promise is retracted
246 DE FIDEICOMMISSIS [n. §§ 246-259.
to the date of the promise : i. e. the obligation of the promiser and
the right of the promisee date from the conclusion of the contract
as if it had been originally unconditional. Though an unconditional
legacy was liable to be defeated by the heres declining the inheri-
tance, or the will from any other cause failing of operation, yet, as
soon as the validity of the will was ascertained by the aditio of the
heres, the vesting of an unconditional legacy dated back from the
opening of the will, or the death of the testator.
One of the Catos was the author of a maxim, that to test the
validity of a legacy we must examine whether it would be valid
if the testator died immediately after executing his will. This was
called regula Catoniana, Dig. 34, 7, 1 pr. The retroactive effect
of the removal of an original impediment to the validity of a title
is called the convalescence of the title. Accordingly, Cato's rule
may be described as a rule denying the convalescence of legacies.
Cato's rule, however, was only a criterion of the validity of uncon-
ditional bequests ; the validity of conditional bequests can only be
tested when the condition is accomplished. Accordingly, of the
three opinions mentioned in this paragraph, that of Sabinus is to be
regarded as sound, and is so treated by Justinian, Inst. 2, 20, 32.
DE FIDEICOMMISSAEIIS HEEEDITATIBVS.
§ 246. Nunc transeanms ad § 246. We now proceed to
fideicommissa. Inst. 2, 23 pr. trusts.
§ 247. Et prius de hereditati- § 247. And to begin with trust
bus uideamus. Inst. 1. c. inheritances.
§ 248. Inprimis igitur scien- § 248. The first requisite is
dum est opus esse, ut aliquis that an heir should be duly
heres recto iure instituatur instituted and that it be com-
eiusque fidei committatur, ut mitted to his trust to transfer
earn hereditatem alii restituat ; the inheritance to another, for
alioquin inutile est testamen- the will is void unless an heir
turn in quo nemo recto iure ls "u^y instituted,
heres instituitur. Inst. 2, 23, 2.
§ 249. Verba autem [utilial § 249. The words properly and
fideicommissorum haec ^rectej commonly used to create a trust
maxime in usu esse uidentur are : 'I beg, I request, I wish, I
PETO, KOQO, VOLO, FIDEI COM- intrust;' and they are just as
MITTO; quae proinde firma binding separately as united,
singula sunt, atque si ortmia in
unum congesta sint.
§ 250. Cum igitur scripseri- § 250. Accordingly, when we
mus <X.) TITIVS HEKES ESTO, have written : ' Lucius Titius, be
possuums adicere EOGO TE L. thou my heir,' we may add : 'I
TITI PETOQVE A TE, YT CVM request and beg thee, Lucius
PRIMVM POS8IS HEREDITATEM Titius, as soon as thou canst
ii. §§ 246-259.] DE FIDEICOMM. HEREDITATIBVS 247
MEAM ADIEE, 0. SEIO EEDDAS
RESTITVAS. possumus autem et
de parte restituenda rogare ; et
liberum est uel sub condicione
uel pure relinquere fideicom-
missa, uel ex die certa.
Inst. 1. c.
§ 251. Restituta autem here-
ditate is qui restituit nihilo
minus heres permanet ; is uero
qui recipit hereditatem aliquan-
do heredis loco est, aliquando
legatarii. Inst. 2, 23, 3.
§ 252. Olim autem nee here-
dis loco erat nee legatarii, sed
potius emptoris. tune enim in
uau erat ei cui restituebatur
hereditas nummo uno earn here-
ditatem dicis causa uenire ; et
quae stipulationes {inter uen-
ditorem hereditatis et emptorem
inter poni solent, eaedem inter-
ponebantury inter heredem et
eum cui restituebatur hereditas,
id est hoc modo : heres quidem
stipulabatur ab eo cui restitue-
batur hereditas, ut quidquid
hereditario nomine condem-
natus so^uisset, siue quid alias
bona fide dedisse£, eo nomine
indemnis esset, et omnino si
quis cum eo hereditario nomine
ageret, ut recte defenderetur ;
ille uero qui recipiebat heredi-
tatem inuicem stipulabatur, ut
si quid ex hereditate ad heredem
peruenisset.id sibi restitueretur,
ut etiam pateretur eum heredi-
tarias actiones procuratorio aut
cognitorio nomine exequi.
§ 253. Sed posterioribus tem-
poribus Trebellio Maximo et An-
naeo Seneca consulibus sena-
tusconsultum factum est, quo
cautum est, ut si cui hereditas
ex fideicommissi causa restituta
sit, actiones quae iure ciuili
accept my inheritance, to convey
and transfer it to Graius Seius ; '
or we may request him to
transfer a part. So again a trust
may be either conditional or abso-
lute, and to be performed either
immediately or from a certain
day.
§ 251. After the transfer of the
inheritance the transferror never-
theless continues heir, while the
transferree sometimes is in the
position of an heir, sometimes in
that of a legatee.
§ 252. But formerly he was
neither in the position of heir
nor in that of legatee but rather
in that of purchaser. Since in
those times it was customary for
the transferree of an inheritance
to pay a sesterce as fictitious pur-
chaser of it, and the stipulations
appropriate to a vendor and pur-
chaser of an inheritance were
entered into by the heir and
transferree, that is to say, the
heir stipulated from the trans-
ferree that he should be indemni-
fied for any sums he might be
condemned to pay or might in
good faith pay on account of the
inheritance, and be adequately
defended in any suit on account
of the inheritance ; and the trans-
ferree on the other hand stipulated
that he should receive from the
heir anything coming to the heir
from the inheritance and be per-
mitted to bring actions belonging
to the heir as his cognitor or
procurator.
§ 253. But subsequently, in the
consulate of Trebellius Maximus
and Annaeus Seneca, a senatus-
consult was passed providing
that, when an inheritance is
transferred in pursuance of a
trust, the actions which the
248
DE FIDEICOMMISSIS [n. §§ 246-259.
heredi et in heredem conpe-
terent (ei) et in eum darentur
cui ex fideicornrnisso restituta
esset hereditas. per quod sena-
tusconsultum desierunt illae
cautiones in usu haberi. prae-
tor enim utiles actiones ei et in
eum qui recepit hereditatem
quasi heredi et in heredem
dare coepit, eaeque in edicto
proponuntur. Inst. 2, 23, 4.
§ 254. Sed rursus quia here-
des scripti, cum aut totam
hereditatem aut paene totam
plerumque restituere rogaban-
tur,adire hereditatem ob nulluni
aut minimum lucrum recusa-
bant, atque ob id extingue-
bantur fideicommissa, ipostea
Pegaso et Pusione (consulibusy
senatus censuit, ut ei qui roga-
tus esset hereditatem restituere
proinde liceret quartam partem
retinere, atque e lege Falcidia
in legatis retinere conceditur.
(ex singulis quoque rebus quae
per ndeicommissum relincuntur
eadem retentio permissa est.)
per quod senatusconsultum ipse
(heres) onera hereditaria susti-
net. ille autem qui ex fidei-
commisso reliquam partem
hereditatis recipit legatarii par-
tiarii loco est, id est eius lega-
tarii cui pars bonorum legatur;
quae species legati partitio vo-
catur, quia cum herede lega-
tarius partitur hereditatem.
unde effectum est, ut quae
solent stipulationes inter here-
dem et partiarium legatarium
interponi, eaedem interponantur
inter eum qui ex fideicommissi
causa recipii hereditatem et
heredem, id est ut et lucrum
et damnum hereditarium pro
rata parte inter eos commune
sit. Inst. 2, 23, 5.
civil law allows to be brought by
the heir or against the heir shall
be maintainable by the trans-
ferree and against the transferree.
Hence the old covenants were
discontinued, and the Praetor
used to give to and against the
transferree as quasi heir the
modified forms of action (utiles
actiones) which are formulated
in the edict.
§ 254. However, as heirs, when
requested to transfer the whole
or nearly the whole of an in-
heritance, declined for only a
small or no benefit to accept
the inheritance, which caused a
failure of the trusts, the senate
in the consulship of Pegasus and
Pusio decreed, that an heir re-
quested to transfer an inheri-
tance should have the same
right to retain a fourth of it
as the lex Palcidia gives to an
heir charged with the payment
of legacies ; and gave a similar
right of retaining the fourth of
any separate things left in trust.
When this senatusconsult comes
into operation, the heir bears the
burdens of the inheritance and
the transferree of the residue is
on the footing of a partiary
legatee, that is, of a legatee of
a certain part of the estate under
the kind of legacy called parti-
tion, because the legatee shares
the inheritance with the heir.
Accordingly the stipulations ap-
propriate between an heir and
partiary legatee are entered into
by the heir and transferree, in
order to secure a ratable division
of the gains and losses arising
out of the succession.
it. §§ 246-259.] DE FIDEICOMM. HEREDITATIBVS 249
§ 255. Ergo siquidem non
plus quam dodrantem here-
ditatis scriptus heres rogatus sit
restituere, turn ex Trebelliano
senatusconsulto restituitur he-
reditas, et in utrumque actiones
hereditariae pro rata parte
dantitr, in heredem quidem iure
ciuili, in eum uero qui recipit
hereditatem ex seDatusconsulto
Trebelliano. quamquam heres
etiam pro ea parte quam restituit
heres permanet eique et in eum
solidae actiones conpetunt ; sed
non ulterius oneratur nee ulte-
rius illi dantur actiones, quam
apud eum commodum hefedita-
tis remanet. Inst. 2, 23, 6.
§ 256. At si quis plus quam
dodrantem uel etiam totam he-
reditatem restituere rogatus sit,
locus est Pegasiano senatus-
consulto. Inst. 1. c.
§ 257. Sed is qui semel adierit
hereditatem, si modo sua uo-
luntate adierit, siue retinuerit
quartam partem siue noluerit
retinere, ipse uniuersa onera
hereditaria sustinetf ; sed quarta
quidem retenta quasi partis et
pro parte stipulationes inter-
poni debent tamquam inter
partiaraim legatarium et here-
dem ; si uero totam hereditatem
restituerit,adexemplum emptae
et uenditae hereditatis stipula-
tiones interponendae sunt.
Inst. 1. c.
§ 258. Sed si recuset scriptus
heres adire hereditatem ob id,
quod dicat earn sibi suspectam
esse quasi damnosam, cauetur
Pegasiano senatusconsulto, ut
desiderante eo cui restituere
rogatus est, iussu praetoris
adeat et restituat, proindeque
ei et in eum qui receperit {here-
§ 255. If then the heir is re-
quested to transfer no more than
three fourths of the inheritance
the Sc. Trebellianum governs the
transfer, and both are liable to
be sued for the debts of the in-
heritance in ratable portions, the
heir by civil law, the transferree
by the Sc. Trebellianum : for
though the heir even as to the
transferred portion continues
heir, and can, according to jus
Civile, sue or be sued for the
entire debts, his liabilities and
rights of action are limited by the
Sc. in the proportion of his bene-
ficial interest in the inheritance.
§ 256. If more than three
fourths or the whole is devised
in trust to be transferred, the
Sc. Pegasianum comes into opera-
tion.
§ 257. And when once the
heir has accepted, that is to say,
voluntarily, whether he retains
one fourth or declines to retain
it, he bears the burdens of in-
heritance : but, if he retains a
fourth, he should covenant with
the transferree as quasi partiary
legatee ; if he transfers the whole,
he should covenant with him as
quasi vendee of an inheritance.
§ 258. If an heir refuse to
accept an inheritance from a sus-
picion that the liabilities exceed
the assets, it is provided by the
Sc. Pegasianum, that on the
request of the transferree he
may be ordered by the Praetor
to accept and transfer ; where-
upon the transferree shall be
250 DE FIDEICOMMISSIS [n. §§ 246-259.
ditatemy actiones dentur, ac just as capable of suing and
iuris est ex senatusconsulto being sued as the transferee
Trebelliano. quo casu nullis under the Sc. Trebellianum. In
stipulationibus opus est, quia this case no stipulations are
simul et huic qui restituit necessary, because the trans-
securitas datur, et actiones ferr°F.. 1S P^tected, and the
hereditariae ei et in eum trans- hereditary actions pass to and
~ . ., i j., against the transterree.
ieruntur qui receperit heredita-
tem. Inst. 1. c.
§ 259. Nihil autem interest § 259. It makes no difference
utrum aliquis ex asse heres in- whether a person appointed as
stitutfus aut totam hereditatem heir to the whole inheritance be
aut pro parte restituere rogetur, requested to restore the whole or
an ex parte heres institutus aut Parfc of ^ or whether a person
totam earn partem aut partis appointed as heir to a share be
partem restituere rogetur; nam requested to restore his whole
et hoc casu de quarto pa7'te share or only a part of it ; for m
,. T> • this case also a fourth or the
ems partis ratio ex Pegasiano ghare to which he ^ inted is
senatusconsulto haberi solet.
Inst. 2, 2d, ».
§ 246. The dispositions of a testator which have been hitherto
considered were directions addressed to his heir, resembling the
orders of a father to his son or of a master to his slave, or the com-
mands of a magistrate or of a legislator to his subjects. Hence the
importance of the regular institution of an heir, of finding a person
who, being a mere creature of the testator's, shall be compelled to
execute his commands.
Fideicommissa, to which we now proceed, are not commands, but
requests. Legatum est quod legis modo, id est, imperative, testa-
mento relinquitur, nam ea quae precativo modo relinquuntur fidei-
commissa vocantur, Ulpian, 24, 1. 'A legacy is a legislative or
imperative testamentary disposition : a precative disposition (a dis-
position in the form of entreaty) is a trust.'
The original object of trusts was to extend the testator's bounty
to those who were legally incapacitated to be legatees ; for instance,
aliens and Latini Juniani ; and though Hadrian subsequently in-
capacitated aliens for taking the benefit of a trust, § 285, yet, as
declarations of trust were exempt from many other restrictions
which hampered direct legacies, they survived the circumstance
which was the principal motive of their introduction, cf. §§ 260-289.
For instance, another object of the declaration of trusts was to avoid
the restrictions imposed by the lex Falcidia on the amount of
legacies bequeathable to legatees who were capable of taking (had
capacitas as well as testamenti factio passiva), § 254, and this object
II. §§246-259.] DE FIDEICOMM. HEREDITATIBVS 251
would continue to operate as a motive for the employment of trusts
even after the invalidation of trusts in favour of peregrini, till it was
defeated by the Sc. Pegasianum. Or again, a limitation to take
effect after the death of heres, § 277, or a charge by means of
codicilli on the intestate heir, which were not recognized by civil
law, remained valid as trusts.
That trusts had originally no legal validity, we see from Cicero,
Verres, 2, 1, 47, where we learn that it was usual for the testator
to make the heir take an oath to perform the testator's wishes,
thus supplying by religious motives the want of a political sanction.
But Augustus, as we are informed by Justinian, Inst. 2, 23, 1, in
some individual cases of breach of trust directed the consuls to inter-
pose their authority and compel trustees to execute their charge ;
and trusts soon became an ordinary mode of testamentary disposi-
tion, and, in process of time, a permanent fiduciaiy jurisdiction was
established, the court of a special praetor fideicommissarius.
Originally if a testator wished to leave to a certain person the
net amount of his fortunes, unsaddled with the burden and risk of
administration, he instituted another as heres, whose sole function
was the satisfaction of creditors and the discharge of the other duties
of administration : and bequeathed the net residue of his patrimony to
the real object of his bounty as legatee (legatarius). When this course
was restricted by the lex Falcidia, a testator who wished a certain
object of his bounty to receive the whole of his patrimony free from
burdens would institute another person as heres, subject to a trust
to transfer the whole of the inheritance, after payment of debts and
perhaps with some remuneration for his trouble, to the real bene-
ficiary (fideicommissarius). At first the testator could only rely on
the honour of the heres, for these trusts were not legally binding ;
and not long after they became legally binding they were subjected
by Sc. Pegasianum, under the Emperor Vespasian, to the same
restrictions as were imposed on legacies. Sc. Trebellianum, under
Nero, had placed the person to whom the inheritance was transferred
in exactly the same position as the heir (heredis loco), to whom the
Falcidian abatement was of course inapplicable. Sc. Pegasianum, to
subject fideicommissarius to this abatement, for the benefit of heres
fiduciarius, gave the latter the option of treating him as if he were
legatarius. Thus the advantage of having a disinterested Executor,
of leaving the testator's wishes to be carried into effect by a person
not, like the heir or one loco heredis, himself interested in the dis-
tribution ; an advantage which an English testator may, if he chooses,
secure, was deliberately sacrificed by the Eoman legislator.
Another method of leaving to a person the net value of an
inheritance without the troubles of administration, viz. the insti-
252 DE FIDEICOMMISSIS [n. §§ 246-259.
tution of the slave of the person whose benefit was intended, has
already been noticed. § 189, comm.
The conversion of a moral into a legal obligation by the legaliza-
tion of trusts was similar to what occurred when, under the Twelve
Tables, legal force was given to the mancipatio cum fiducia, declaring
the conditions and purposes of a emancipation, 2 § 60 ; and,
remembering the celebrated ordinance, Cum nexum faxit manci-
piumque, uti lingua nuncupassit, ita jus esto, it may occur to us to
wonder why Augustus did not imitate the energetic brevity of the
ancient legislator, and simply enact, Cum testamentum faxit codi-
cillosve, uti fideicommiserit, ita jus esto. There would then have
been no need of the cumbrous machinery of fictitious sales and
stipulations between quasi vendor and quasi vendee ; but a little
reflection will show that such an enactment would have operated
very inconveniently, and have defeated the very purposes for which
trusts were instituted. Such an enactment would have made trusts,
like nuncupations, a matter of civil law ; and the jus strictum of
the civil law was far from elastic or rational even in the time
of Augustus ; so that, if it was intended to enlarge the powers of
testators and the discretion of the fiduciary tribunal, it was abso-
lutely necessary to make trusts a province not of legal but of
equitable jurisdiction.
§ 251. The transferree, it will be seen, was quasi heir. when the
Sc. Trebellianum applied : when the Sc. Pegasianum applied he was
either quasi legatee or quasi vendee.
§ 252. These stipulations were employed because the fictitious sale
(dicis causa, nummo uno) of the inheritance produced no universal
succession, and so did not transfer the liability. But after Antoninus
Pius these stipulations were not required in case of an actual sale
of an inheritance, for though this did ttot operate as a universal
succession, it involved a cession of actions. Dig. 2, 14, 16; cf. Dig.
18, 4, Cod. 4, 39.
§ 253. The terms of the Sc. Trebellianum, passed in the reign of
Nero, probably A. r>. 57, are given in the Digest 36, 1, 1 and 2. ' Foras-
much as equity requires that whenever an inheritance is left in trust,
any actions arising thereout should be brought against the transferree
of the inheritance or by him, rather than that the fiduciary heir
should incur any risk in consequence of his trust ; it is decreed that
the actions of and against an heir, shall not be granted to or against
an heir who transfers a succession in pursuance of a trust, but to
and against the testamentary transferree, in order that in future the
last wishes of testators may have more effect.' It is strange that
the lawgiver should have stooped to the use of fiction (actio utilis),
the natural instrument of a magistrate timidly usurping legislative
ir. §§ 246-259.] DE FIDEICOMM. HEREDITATIBVS 253
power. Bethmann-Hollweg, § 96, suggests that actio utilis was in this
case not actio fictitia but actio in factum concepta. (Of. Lenel xv. 68.)
§ 254. By the Sc. Trebellianum, if the whole beneficial interest
in an inheritance was transferred, the whole right of suing and
being sued passed to the transferree : if only a portion of the bene-
ficial interest was transferred, both the transferror and the trans-
ferree could sue and be sued in the same proportion. But if the
whole or almost the whole inheritance is to be transferred to another
the heir has little or no inducement to enter upon it, on which
account the trust may fail with the other provisions of the will.
Hence the Sc. Pegasianum, passed in the reign of Vespasian,
A. D. 70-76, apparently provided that when less than a fourth of the
inheritance is left to the benefit of the fiduciary heir, he should still
be entitled to retain his fourth, the Sc. Trebellianum being then
inoperative, that is to say, that in such a case the actions by or
against the inheritance shall not be maintainable by or against both
the heir and the transferree in the proportion of their interests, but
should be exclusively maintainable by or against the heir. In fact,
having subjected the transferree to the liability of abatement which
the lex Falcidia imposed on the legatee, it seemed logical to put
him in all other respects on the footing of a legatee, or singular
successor, including the immunity from being sued and incapacity of
suing for the debts of the succession. If then the fiduciary heir,
retaining his fourth, became thus sole administrator, the Sc. Pegasi-
anum directed him an4 the transferree to enter into the covenants
usual between an heir and a partiary legatee. The heir promised,
in the event of an underestimate, to make an additional payment ;
and the transferree promised, in the event of an overestimate, to
make a proportional repayment. A partiary legatee is a legatee by
partition, which Theophilus calls a fifth form of legacy, and of
which Ulpian gives the formula, 24, 25. ' As single things can be
bequeathed, so can a universality, for instance thus: Do thou, my
heir, partition and divide my inheritance with Titius ; in which case
a moiety is deemed to be bequeathed, but any other part, a third
or fourth, may be bequeathed, and this form of bequest is called
partition.' This form of legacy probably owed its origin to the lex
Voconia, § 226, which forbade Classicus to make an heiress.
§§ 257, 258. The subject is not very clearly explained by Gaius,
but it would seem that after the Sc. Pegasianum was passed, the
principle of the Sc. Trebellianum continued to apply, if as much as
a quarter of the estate was reserved to the heir by the testator ; thus
the inheritance with its rights and duties would be divided pro parte
between the heir and the transferree. But if the heir was left less
than one fourth, his relation to the transferree, if he accepted the
254 DE FIDEICOMMISSIS [n. §§ 246-259.
inheritance, was determined by the Sc. Pegasianum. In such cir-
cumstances he might enter on the inheritance and deduct a fourth,
or if he chose to carry out the trust implicitly enter without making
this deduction. But in the latter case, as well as in the former, the
law treated him not as an heir but as a legatee, which made the old
stipulations still necessary.
However Modestinus recommended, as the safer course if the heir
declined to avail himself of his right to the fourth, that he should
feign unwillingness to accept a damnosa hereditas, and should make
a compulsory acceptance by the order of the praetor, § 258, in which
case the actions are transferred in totality to the transferree by the
express provision of the Sc. Pegasianum, Dig. 36, 1, 47. The
sequence of §§ 257, 258 seems to indicate an intention of Gaius to
suggest that this course might be adopted.
The requirement for form's sake of a compulsory aditio and
restitutio, instead of making the hereditas vest immediately under
the will in the fideicommissarius (the course pursued by the legis-
lator in the English statute of Uses and Trusts), has already,
1 §§ 189-193, been noticed as characteristic of Eoman jurisprudence.
It had this inconvenience, that it permitted the trusts to be defeated
by the death or absence, malicious (dolo malo) or involuntary, of
the heres fiduciarius. No remedy was provided for this contingency
till the time of Justinian, who enacted that in such a case the
inheritance should vest in the fideicommissarius by mere operation
of law (ipso jure). Sancimus itaque ut sive per contumaciam
afuerit is cui restitutio imposita est, sive morte praeventus nullo
relicto successore fuerit, sive a primo fideicommissario in secundum
translatio celebrari jussa est, ipso jure utiles actiones transferantur,
Cod. 6, 49, 7, 1 &.
§ 259. The stipulations of the transferree as quasi vendee or
quasi partiary legatee required by the Sc. Pegasianum were not
only a cumbrous machinery, but after all afforded an insufficient
security to the parties. The heir and transferree were always in
mutual danger of one another's insolvency, and an heir after trans-
ferring the whole inheritance, though not fairly liable to any
molestation or vexation on account of it, might find himself with
two lawsuits on his hands : he might first be sued by the creditors
of the estate, and then have to recover back what he is condemned
to pay them from the transferree by suing him on the covenants of
quasi vendor and quasi vendee.
It is not surprising therefore, that Justinian abolished these
provisions of the Sc. Pegasianum, and enacted that in every case
there shall be a transfer or division of actions as contemplated by
the Sc. Trebellianum, i. e. that the actions by or against the in-
ii. §§246 -259.] DE FIDEICOMM. HEREDITATIBVS 255
heritance shall either be transferred in totality to the transferree.
or be maintainable by or against both the heir and the transferree
in the proportion of their interests. See Inst. 2, 23, 7.
The following observations may serve to complete the explanation
of the Sc. Trebellianum and the Sc. Pegasianum.
Succession is the transfer of a right from one person (auctor) to
another person (successor), such as occurs, for instance, in the con-
veyance or alienation of property. Here the same right of ownership
that was previously vested in the alienor is subsequently vested in
the alienee. The right continues the same ; the person invested
therewith is changed. It was characteristic of obligatio ; a relation
between two determinate persons (before, at least, the comparatively
modern invention of papers payable to the holder and transferable by
delivery) that it was not capable of a similar alienation. All that
could be done to accomplish a similar result was to employ one of
two processes, Novation or Cession of Action, § 38. 3 §§ 155-162,
comm. In these procedures there is strictly speaking no Succession,
for in Novation the transferree is not invested with the same right
that previously vested in the transferror, but a new right is created
in the transferree while the old right of the transferror is extin-
guished : and in Procuration or Cession the right still continues
nominally in the transferror, as representative of whom the trans-
ferree recovers it or enforces it by action, retaining for himself what
is recovered.
This inalienability of obligations, however, was confined to
SINGULAR successions (in singularum rerum dominium successio) :
UNIVERSAL succession (per universitatem successio) or the trans-
mission of the ideal whole of a patrimony, of which we have
an example in hereditas testamentary or intestate, differed from
SINGULAR succession by the capacity of passing obligation as well
as Dominion. The heres of the testator or intestate sued and was
sued in his own name on the obligations, active or passive, that
originally vested in the deceased. But UNIVERSAL succession was an
institution only recognized by Roman jurisprudence in certain
definite cases. It was a formidable operation and rigorously cir-
cumscribed. It was not a transaction that the law allowed to be
accomplished at the discretion of individual parties in pursuance of
private convention. It was only admitted in the cases -enumerated
oy Gaius, § 98, and, without legislative interference, the list could
not be augmented.
These difficulties in the transfer of obligation opposed a great
obstacle to the transfer (restitutio) of trust successions: and these
difficulties were partially removed by the Sc. Trebellianum, and
more completely by Justinian, by investing the Restitutio with the
256 DE FIDEICOMMISSIS [n. §§ 246-259.
character of successio per universitatem, in other words, by the
legislative sanction of a new instance of UNIVERSAL succession.
The following observations may illustrate the joint operation of
the laws concerning Trusts and the lex Falcidia under the law of
Justinian. Although the fideicommissarius or person to whom an
inheritance or a portion thereof is directed to be transferred (restitui)
is charged like a coheres with the legacies in proportion to the quota
which he takes, he has not like the heres a right of deducting
from the legacies with which he is charged, and retaining for him-
self a Falcidian portion or fourth of his quota. His rights against
the legatee depend on the question whether the testator in directing
the transfer, or in other words creating the trust, used either
expressly or by implication the terms deductis legatis, ' after deduc-
tion of legacies,' a clause favouring the legatees ; or whether, in
giving the legacies, he used terms charging them on the inheritance
(si ad heredis onus esse testator legata dixerit) ; which would imply
that the cestui que trust was to be exactly assimilated to the legatees.
The following examples will illustrate the working of the law.
A testator owning 400 (sestertia, or any other units) leaves all
to A as his sole heres, but directs him as trustee (fiduciarius)
to convey half the inheritance to B (fideicommissarius), and leaves
a legacy of 200 to C. The effect is that C receives 100 from A and
100 from B. Dig. 36, 1, 1, 20.
But suppose the testator left a legacy of 400 to C. Then C will
receive 200 from B who has no right of retaining anything, and
100 from A, who is entitled to retain for himself one fourth of his
inheritance, i.e. the 100 that remain.
Questions, however, requiring special treatment may arise in the
following cases : — ( i ) If an heir is charged to transfer the whole of
an inheritance and the legacies are added to his charge (si ad
heredis onus esse testator legata dixerit), the interests of both the
legatee and transferree undergo, if necessary, a proportional reduction.
For instance a testator, proprietor of 400, makes A his sole heres,
but requests him to transfer the whole succession to B, and gives
a legacy of 300 to C, making use of the above-mentioned terms.
The result is that A, the heres, retains 100 as his Falcidian fourth,
and the remaining 300 are distributed between B the cestui que
trust and C the legatee, in the proportion of 4 to 3 ; that is to say,
the cestui que trust takes f or 17 If, and the legatee takes f or 128^.
Dig. 36, 1, 3 pr.
(2) If the testator directs the heir to transfer the whole of the
inheritance ' after deduction of the legacies ' (deductis legatis), the
transferree bears the whole burden of the legacies, and only keeps
what remains after full payment of the legatee, subject to this
IT. §§ 246-259.] DE FIDEICOMM. HEREDITATIBVS 257
proviso, that, though a transferree is generally not entitled to a
Falcidian fourth, yet if a transferree who has to bear the burden
of legacies receives the inheritance reduced by the Falcidian fourth
of the heres, he is himself entitled to reduce proportionally the
legacies and retain a fourth thereof for himself. Dig. 35, 1, 43, 3 ;
35, 2, 32, 4. E.g. a testator, proprietor of 400, makes A his sole
heres, requesting him to transfer the whole inheritance to B after
deduction of legacies, and leaves a legacy of 300 to C. The result
is that the heir retains ^ (100); and the remaining 300 is dis-
tributed between the legatee and transferree, the legatee taking
300 reduced by i (225), and the transferree taking that £ (75).
The same effect would have been produced if the testator, instead
of using the clause deductis legatis, had simply charged the legacies
on the fideicommissarius. Or the rights of the fideicommissarius
may be calculated with the same result by the following method.
The heres retains ^ and transfers f to the cestui que trust, who under
Justinian's legislation is no longer a partiary legatee as he was
under the Sc. Pegasianum, but a sharer of the inheritance with
the heres in the proportion of ^ to ^. The legatee is entitled
to 300 from these co-heirs in the proportion of their shares of
the inheritance. The heres, however, is protected by the lex
Falcidia, and thus ^ of the legacy is lost to the legatee : he obtains,
however, f (225) from the transferree, who retains for himself the
remaining £ (75).
(3) If the heres makes voluntary aditio, but does not retain the
Falcidian fourth to which he is entitled, then, if the legacy was
charged on the inheritance, the whole inheritance is divided between
the transferree and legatee in the proportion of 4 to 3 : that is, the
transferree obtains altogether 228f and the legatee 171f.
(4) If the legacy was expressly charged on the fideicommissarius,
or if there was no express clause denning whether it was charged
on him or on the heres, then the legatee will benefit by the heres
abstaining from his fourth: and the transferree will only get
what remains after full payment of the legacy. Thus, in the
circumstances we have assumed, the legatee will get 300 and the
transferree 100.
(5) If the heres abstains from his ^ expressly in favour of the
transferree, the latter alone gets the benefit of such abstention.
(6) If the heres only makes compulsory aditio, he takes no share
of the Falcidian fourth, which all goes to the account of the trans-
ferree who compelled the heres to make aditio. Dig. 36, 1, 2.
(7) If the heres has to transfer the whole but has received his
Falcidian fourth in the shape of legacies, the transferree has to
satisfy the other legatees : and if he cannot pay the whole of their
258
DE FIDEICOMMISSIS [n. §§ 260-289.
legacies they may recover from the heres all that he receives beyond
his fourth.
(8) If the heres is directed to transfer not the whole but f of the
inheritance, the transferree has to satisfy the legatees, but deducts
and retains for himself ^ of their legacies, as he would under the
circumstances supposed in (3). Vangerow, § 559.
§ 260. Potest autem quisque
etiam res singulas per fideicom-
missum relinquere, uelut fun-
dum hominem uestem argen-
tum pecuniam, et uel ipsum
heredem rogare, ut alicui resti-
tuat, uel legatarium, quamuis
a legatario legari non possit.
Inst. 2, 24, pr.
§ 261. Item potest non solum
propria testatoris res per fidei-
commissum relinqui, sed etiam
heredis aut legatarii aut cuius-
libet alterius. itaque et lega-
tarius non solum de ea re
rogari potest, ut earn alicui
restituat quae ei legata sit, sed
etiam de alia, siue ipsius lega-
tarii siue aliena sit. [sed] hoc
solum obseruandum est, ne plus
quisquam rogetur aliis resti-
tuere, quam ipse ex testamento
ceperit ; nam quod amplius est,
inutiliter relinquitur.
Inst. 2, 24, 1.
§ 262. Cum autem aliena res
per fideicommissum relinquitur,
necesse est ei qui rogatus est
aut ipsam redimere et praestare,
aut aestimationem eius soluere,
aicut iuris est, si per damna-
tionem aliena, res legata sit.
sunt tamen qui putant, si rem
per fideicommissum relictam
dominus non uendat, extingui
fideicommissum ; sed aliam esse
causam per damnationem le-
gati. Inst. 1. c.
§ 263. Libertas quoque seruo
per fideicommissum dari potest,
§ 260. Not only an inheritance,
but also single things, may be
bequeathed by way of trust, as
land, a slave, a garment, plate,
money ; and the trust may be
imposed either on an heir or on
a legatee, although a legatee can-
not be charged with a legacy.
§ 261. Again not only the tes-
tator's property, but that of the
heir, or of a legatee, or that of
any stranger, may be left by way
of trust. Thus a legatee may be
charged with a trust to transfer
either a thing bequeathed to him,
or any other thing belonging to
himself or to a stranger ; provided
always that he is not charged
with a trust to transfer more
than he takes under the will, for
in respect of such excess the
trust would be void.
§ 262. When a stranger's pro-
perty is bequeathed by way of
trust, the trustee must either
procure and convey the specific
thing or pay its value, like an
heir charged under a bequest by
condemnation ; though some hold
that the owner's refusal to sell
avoids such a trust, though it
does not avoid a bequest by con-
demnation.
§ 263. Liberty can be left to a
slave by a trust charging either
ii. §§ 260-289.] DE SINGVLIS REBVS FIDEICOMM. 259
ut uel heres rogetur manumit-
tere uel legatarius.
Inst. 2, 24, 2.
§ 264. Nee interest utrum de
suoproprio seruo testator roget,
an de eo qui ipsius heredis aut
legatarii uel etiam extranei sit.
Inst. 1. c.
§ 265. Itaque et alienus
seruus redimi et manumitti
debet. quodsi dominus eum
non uendat, sane extinguitur
fideicommissaria libertas, quia
hoc casu pretii conputatio nulla
interuenit. Inst. 1. c.
§ 266. Qui autem ex fidei-
commisso manumittitur, non
testatoris fit libertus, etiamsi
testatoris seruus fuerit, sed eius
qui manum^tit. Inst. 1. c.
§ 267. At qui directo testa-
mento liber esse iubetur, uelut
hoc modo STICHVS SERVVS
(MEVS) LIBEE ESTO, uel hoc
STTCHVM SERVVMMEVM LTBERVM
ESSE IVBEO, is ipsius testatoris
fit libertus. nee alius ullus di-
recto ex testamento libertatem
habere potest, quam qui utroque
tempore testatoris ex iure Qui-
ritium fuerit, et quo f&ceret
testamentum et quo moreretur.
Inst. 1. c.
§ 268. Multum autem diffe-
runt ea quae per fideicommis-
sum re\incun\tur ab his quae
directo iure legantur.
§ 269. Nam ecce per fidei-
commissum etiam — ] — heredis
relinqui potest ; cum alioquin
legatum — ] inutile sit.
§ 270. | Item intestates mori-
turus potest ab eo ad quern
bona eius pertinent fideicom-
missum alicui relinquere ; cum
alioquin ab eo legari non possit.
an heir or a legatee with his
manumission.
§ 264. And it makes no differ-
ence whether the slave is the
testator's own property, or that
of the heir himself, or of the
legatee, or even that of a stranger.
§ 265. A stranger's slave, there-
fore, must be purchased and
manumitted, but his owner's
refusal to sell extinguishes the
gift of liberty, because liberty
admits of no valuation in money.
§ 266. A trust of manumission
makes the slave the freedman,
not of the testator, though he
may have been the owner of the
slave, but of the manumitter.
§ 267. A direct bequest of
liberty, such as: 'Be my slave
Stichus free,' or, 'I order that
my slave Stichus be free,' makes
the slave the freedman of the
testator. A direct bequest of
liberty can only be made to a
slave who is the testator's quiri-
tarian property at both periods,
both at the time of making his
will and at the time of his
decease.
§ 268. There are many differ-
ences between trust bequests and
direct bequests.
§ 269. Thus by way of trust a
bequest may be charged on the
heir of the heir, whereas such a
bequest made in any other form
is void.
§ 270. Again, a man going to
die intestate can charge his heir
with a trust, but cannot charge
him with a legacy.
S 2
260
DE FIDEICOMMISSIS [n. §§ 260-289.
§ 270 a. Item legatum codi-
cillis relictum non aliter ualet,
quam si a testatore confirmati
fuerint, id est nisi in testamento
cauerz'i testator, ut quidquid in
codicillis scripserit id ratuni
sit ; fideicommissum uero etiam
non confirmatis codicillis relin-
qui potest.
§ 271. Item a legatario legari
non potest ; sed fideicommissum
relinqui potest. quin etiam ab
eo quoque cui per fideicommis-
sum relinquimus rursus alii per
fideicommissum relinquere pos-
sumus.
§ 272. Item seruo alieno di-
recto libertas dari non potest ;
sec? per fideicommissum potest.
§ 273. Item codicillis nemo
heres institui potest neque ex-
heredari, quamuis testamento
confirmati sint. at is qui testa-
mento heres institutus est potest
codicillis rogari, ut earn here-
ditatem alii totam uel ex parte
restituat, quamuis testamento
codicilli confirmati non sint.
§ 274. Item mulier quae ab
eo qui centum milia aeris census
est per legem Voconiam heres
institui non potest, tamen fidei-
commisso relictam sibi here-
ditatem capere potest.
§ 275. Latini quoque qui he-
reditates legataque directo iure
lege lunia capere prohibentur
ex fideicommisso capere pos-
sunt.
§ 276. Item cum senatuscon-
sulto prohibitum sit proprium
seruum minorem annis xxx
liberum et heredem instituere,
plerisque placet posse nos iubere
liberum esse, cum annorum xxx
§ 270 a. Again, a legacy left
by codicil is not valid, unless the
codicil has been confirmed by the
testator, that is, unless the tes-
tator has provided in his will that
anything written in his codicil is
ratified : whereas a trust requires
no ratification of the codicil.
§ 271. A legatee too cannot be
charged with a direct legacy, but
can be the subject of a trust,
and the beneficiary of a trust may
himself be charged with a further
trust.
§ 272. So also a slave of a
stranger cannot be enfranchised
by direct bequest, but may by
the interposition of a trust.
§ 273. A codicil is not a valid
instrument for the institution of
an heir or for his disinheritance,
though it is ratified by will : but
an heir instituted by will may be
requested by a codicil to transfer
the inheritance in whole or in
part to another person without
any ratification by will.
§ 274. A woman who cannot
by the lex Voconia be instituted
heiress by a testator registered in
the census as owning a hundred
thousand sesterces, can never-
theless take an inheritance be-
queathed to her by way of a trust.
§ 275. And Latini Juniani,
who are disabled by the lex
Junia from taking an inheritance
or legacy by direct bequest, can
take it by means of a trust.
§ 276. Again a decree of the
senate (rather, the lex Aelia
Sentia 1 § 1 8) incapacitates a |
testator's slave under thirty years
of age from being enfranchised
and instituted heir; but, according
ii. §§ 260-289.] DE SINGVLIS EEBVS FIDEICOMM. 261
erit, et rogare, ut tune illi resti-
tuatur hereditas.
§ 277. Item quamuis non
(possimus} post mortem eius
qui nobis heres extiterit alium
in locum eius heredem insti-
tuere, tamen possumus eum
rogare, ut cum morietur alii
earn hereditatem to tarn uel ex
parte restituat. et qui a post
mortem quoque heredis fidei-
commissum dari potest, idem
efficere possumus et si ita scrip-
serimus GYM TITIVS HEEES MEVS
MOKTVVS EBIT, VOLO HEREDITA-
TEM MEAM AD P. MEVIVM PER-
TINERE. utroque autern modo,
tarn hoc quam illo, Titius here-
dem suum obligatum relinqui£
de fideicommisso restituendo.
§ 278. Praeterea legata {per}
formulam petimus ; fideicom-
missa uero Romae quidem apud
consulem uel apud eum prae-
torem qui praecipue de fidei-
commissis ius dicitpersequirnur,
in prouinciis uero apud prae-
sidem prouinciae.
§ 279. Item de fideicommissis
semper in urbe ius dicitur ; de
legatis uero, cum res agun^ur.
§ 280. Item fideicommissorum
usurae et fructus debentur, si
modo moram solutionis fecerit
qui fideicommissum debebit ;
legatorum uero usurae non de-
bentur; idquerescriptodiui Ha-
driani significatur. scio tamen
luliano placuisse, in eo legato
quod sine-ndi modo relinquitur
idem iuris esse quod in fideicom-
inissis ; quam sententiam et his
temporibus magis optinere uideo.
to the prevalent opinion, he can
be ordered to be free on attaining
the age of thirty, and the heir
may be bound by way of trust
to transfer the inheritance to him
on that event.
§ 277. An 'heir cannot be in-
stituted after the death of a prior
heir, but an heir may be bound
by way of trust to transfer the in-
heritance, when he dies, in whole
or in part to another person ; or,
as a trust may be limited to take
effect after the death of the heir,
the same purpose may be accom-
plished in these terms : ' When
my heir is dead, I wish my in-
heritance to go to Publius Me-
vius ; ' and whichever terms are
employed, the heir of my heir is
bound by a trust to transfer the
inheritance to the person desig-
nated.
§ 278. Legacies, moreover, are
recovered by the formulary pro-
cedure ; but trusts are enforced
by the extraordinary jurisdiction
of the consul or praetor fideicom-
missarius at Koine ; in the pro-
vinces by the extraordinary juris-
diction of the president.
§ 279. Cases of trust are heard
and determined at Borne at all
times of the year ; cases of legacy
can only be litigated during the
trial term.
§ 280. Trusts entitle to pay-
ment of interest and interim
profits on delay of performance
(mora) by the trustee ; legatees
are not entitled to interest, as
a rescript of Hadrian declares.
Julianus, however, held that a
legacy bequeathed in the form
of permission is on the same
footing as a trust, and this is
now the prevalent doctrine.
262
DE FIDEICOMMISSIS [n. §§ 260-289.
§ 281. Item legata Graece
scripta non ualent; fideicom-
missa uero ualent.
§ 282. Item si legatum per
damnationem relictum heres
infitfietur, in duplum cum eo
agitur; fideicommissi uero no-
mine semper in simplum per-
secutio est.
§ 283. Item {quod} quisque
ex fideicommisso plus debito
per errorem soluerit, repetere
potest ; at id quod ex causa
falsa per damnationem legati
plus debito solutum sit, repeti
non potest. idem scilicet iun's
est de eo [legato], quod non
debiturn uel ex hac uel ex ilia
causa per errorem solutum
fuerit.
§ 284. Erant etiam aliae dif-
ferentiae, quae nunc non sunt.
§ 285. Vt ecce peregrini
poterant fideicommissa capere ;
et fere haec fuit origo fidei-
commissorum. sed postea id
prohibitum est ; et nunc ex
oratione diui Hadriani senatus-
consultum factum est, ut ea
fidezcommissa fisco uindicaren-
tur.
§ 286. Caelibes quoque, qui
per legem luliam hereditates
legataque capere prohibentur,
olim fideicommissa uidebantur
capere posse.
§ 286 a. Item orbi, • qui per
legem Papiam [ob id quod
liberos non habebant] dimidias
partes hereditatfum legatorum-
que perdunt, olim solida fidei-
commissa uidebantur capere
posse, sed postea senatuscon-
sulto Pegasiano proinde fidei-
commissa quoque ac legata
hereditatesque capere posse pro-
hibiti sunt ; eaque translata
§ 281. Bequests expressed in
Greek are invalid ; trusts ex-
pressed in Greek are valid.
§ 282. An heir who disputes a
legacy in the form of condemna-
tion is sued for double the sum
bequeathed ; but a trustee is only
suable for the simple amount of
the trust.
§ 28 3. On overpayment by mis-
take in the case of a trust, the
excess can be recovered back by
the trustee ; but on overpayment
from some mistaken ground of
a bequest by condemnation, the
excess cannot be recovered back
by the heir ; and the law is the
same in the case of what is not
due at all, but which has been
paid by some mistake or other.
§ 284. There formerly were
other differences which no longer
exist.
§ 285. Thus aliens could take
the benefit of a trust, and this
was the principal motive in which
trusts originated, but afterwards
they were incapacitated ; and now,
by a decree of the senate passed
on the proposition of Hadrian,
trusts left for the benefit of aliens
may be claimed by the fiscus.
§ 286. Unmarried persons, who
are disabled by the lex Julia from
taking inheritances or legacies,
were formerly deemed capable of
taking the benefit of a trust.
§ 286 a. And childless persons,
who forfeit by the lex Papia, on
account of not having children,
half their inheritances and lega-
cies, were formerly deemed capable
of taking in full as beneficiaries
of a trust. But at a later period
the Sc. Pegasianum extended to
trust dispositions the rules which
attach to legacies and inheritances,
transferring the trust property to
ii. §§ 260-289.] DE SINGVLIS REBVS FIDEICOMM. 263
sunt ad eos, qui {in eo) testa-
mento liberos habent, aut si
nulhts liberos habebit, ad popu-
lum, sicut iuris est in legatis et
in hereditatibus,quae eadem aut
simiK ex c&u(sa caduca fiunt.
§ 287. J)tem olini incertae
personae uel postumo alieno
per fideicommissum relinqui
poterat, quamuis neque heres
institui neque legari ei posset ;
sed senatusconsulto, quod au-
ctore ditto Hadriano factum est,
idem in fideicommissis quod in
legatis hereditatibusque consti-
tutum est.
§ 288. Item poenae nomine
iam non dubitatur nee per fidei-
commissum quidem relinqui
posse.
§ 289. Sed quamuis in mult^s
iuris partibus longe latior causa
sit fideicommissorum quam eo-
rum quae directo relincuntur, in
quibusdam tantumdem ualeant,
tamen tutor non aliter testa-
mento dari potest quam directo,
ueluti hoc modo LIBERIS MEIS
TITIVS TVTOB ESTO, uel ita LI-
BERIS MEIS TITIYM TVTOREM DO;
per fideicommissum uero dari
non potest.
those mentioned in the will who
have children, and failing these
to the people (aerarium), as hap-
pens to legacies or inheritances
which on the same or similar
grounds become 'caduca.'
§ 287. So too, at one time, an
uncertain person or an afterborn
stranger could take the benefit of
a trust, though he could neither
take as heir nor as legatee, but a
decree of the senate, passed on
the proposition of the emperor
Hadrian, made the law in this
respect relating to legacies and
inheritances applicable also to
trusts.
§ 288. It is now clear that
trusts cannot be left with the
object of inflicting a penalty.
§ 289. Although in many
branches of law trusts have an
ampler scope than direct disposi-
tions, while in others they are on
a par, yet a testamentary guardian
can only be appointed by direct
nomination, as thus : ' Be Titius
guardian to my children ; ' or
thus : 'I nominate Titius guardian
to my children ; ' he cannot be
appointed by way of trust.
§ 265. Justinian declares that the heir is not forthwith released
from his obligation by the owner's refusal to sell, but will be bound
to seize any opportunity that may subsequently offer of purchasing
and manumitting the slave in pursuance of the trust, Inst. 2, 24, 2.
§ 270 a. Codicils, as well as fideicommissa, according to Justinian,
first acquired legal validity in the time of Augustus, who, being
trustee under a codicil, set the example of performing the trust.
The jurist Trebatius being consulted by Augustus, whether it was
possible to give legal force to codicils without defeating the policy
of testamentary law, gave a decided opinion in the affirmative ; and
all scruples respecting the validity of codicils vanished when it
became known that codicils had been left by the eminent jurist
Labeo, Inst. 2, 25, pr.
264 DE FIDEICOMMISSIS [n. §§ 260-289.
Codicillus is the diminutive of codex, and denotes the less im-
portant and solemn documents or instruments of a man of business,
a pocket-book, an agenda, a codicil ; as codex denotes the more
important and formal documents, a journal, a ledger, a will. A
codicil enabled a testator who had solemnly executed a will to add
to or modify its dispositions without the necessity of re-execution.
It was usual in a will to ratify any prior or subsequent codicils ;
a codicil, however, might exist without any will. An informal will
could only take effect as a codicil if such was the expressed intention
of the testator. A codicil could not contain an institution or dis-
inheritance or substitution ; but it might contain a trust for the
transfer of the whole of an inheritance : and though a codicil could
not contain a disinheritance, yet we have seen (§§ 147-151, comm.)
that a codicillary declaration that the heir was unworthy produced
confiscation or ereption of the inheritance for indignitas. A testator
could only leave a single will, for a later will revoked a former ;
but he might leave many codicils. A codicil needed no formalities,
though Justinian required the attestation of five witnesses, not,
however, as an essential solemnity, but as a means of proof : for, in
the absence of five witnesses, the heir might be required to deny
the existence of a trust upon his oath, Inst. 2, 23, 12. The admission
of codicils was a departure from the rule requiring a unity in the
act of testation. The concentration of his last will in a single act
disposing simultaneously of all his property was no longer required of
the testator. He now might distribute his fortune by way of legacy
in a series of fragmentary or piecemeal and unrelated dispositions.
§ 278. Fideicommissa were enforced by persecutio, or the praetor's
extraordinaria cognitio, 4 § 184, comm.
§ 279. The law terms at Kome during the greater part of the
formulary period, were of two different kinds: (i) the juridical
term or term for jurisdictio, and (2) the judicial term or term for
trials.
(1) The term for jurisdiction, that is, for the solemn acts of the
praetor sitting on the tribunal in his court in the comitium, was
that originally prescribed for the ancient legis actiones. The year
was divided into forty dies fasti, unconditionally allotted to juridical
proceedings, one hundred and ninety dies comitiales, available for
juridical purposes unless required for the legislative assemblies, dies
intercisi, of which certain hours were available for jurisdiction, and
sixty dies nefasti, which were absolutely unavailable for juridical
proceedings.
(2) Judicia, or trials before a judex in the forum, were unaffected
by dies fasti and nefasti, but dependent on another division, dies
festi and profesti : dies festi (days devoted to feriae, ludi, epulae,
ii. §§ 260-289.] DE SINGVLIS REBVS FIDEICOMM. 265
sacrificia) being exempted from litigation. Besides these occasional
interruptions of litigation, there were longer set vacations, which
we find rearranged on several occasions. Thus at one time we find
two judicial terms (rerum actus, cum res aguntur) in the year, a
winter and a summer term, and two vacations, one in spring and
another in autumn. Claudius substituted a single vacation at the
close of the year, and made the law term continuous. Rerum actum,
divisum antea in hibernos aestivosque menses, conjunxit, Suetonius,
Claudius, 23. Galba abolished this vacation, and confined the
intervals of litigation to dies feriati. Marcus Aurelius, in the time
of Gaius, abolished the distinction between the jurisdiction term
(dies fasti) and the trial term (rerum actus). He devoted two hun-
dred and thirty days (adding the number of dies fasti to the number
of dies comitiales) to forensic proceedings, under the name of dies
juridici or dies judiciarii, and allowed even the rest of the year, dies
feriati, to be used for litigation with the consent of the parties.
Judiciariae rei singularem diligentiam adhibuit: fastis dies judicia-
ries addidit, ita ut ducentos triginta dies annuos rebus agendis
litibusque disceptandis constitueret, Capitolinus, Marcus, 10. 'He
also very carefully regulated the administration of justice, adding
forensic days to the calendar, and allotting two hundred and thirty
to litigation and civil suits.'
Subsequently to the time of Gaius, a law of Valentinian, Theo-
dosius, and Arcadius, A. D. 389, while it declared the principle that
all days are dies juridici, excepted, besides Sundays and certain
other holidays, two months for harvest and vintage, and two weeks
at Easter. Justinian further appointed, by way of interpolation in
this law, certain vacations at Christmas, Epiphany, and Pentecost,
Cod. 3, 12, 6, thus furnishing the model on which the four English
law terms were regulated by Edward the Confessor. Subsequently
the Statute of Westminster, 13 Edward I, permitted assizes to
be held in the vacations, and thus a distinction grew up in England
somewhat resembling that of the jurisdictional (dies fasti) and judicial
terms (rerum actus) ; with this difference, however, that the same
judges presided both in their own court held at Westminster, and on
assize, where they acted under commissions to try cases in the county
in which the cause of action arose. Thus in England a judge, after
sitting at Westminster during term, was able to go on circuit during
part of the vacation ; but at Rome the distinction rested on the
difference between proceedings in jure and in judicio. See Puchta,
Institutionen, § 158.
§ 280. After the time of Gaius the liability of a defendant to
interest and profits (fructus) from the date on which he was guilty
of MORA appears to have been extended to all legacies without ex-
266 DE FIDEICOMMISSIS [n. §§ 260-289.
ception. Ex mora praestandorum fideicommissorum vel legatorum
fructus et usurae peti possunt : mora autem fieri videtur cum po-
stulanti non datur, Paulus 3, 8, 4. 'Delay of the heir to satisfy
trusts and legacies entitles the cestui que trust and legatee to
fruits and interest. Delay dates from the ineffectual demand of
the creditor.'
A demand, however, is not requisite when a term for payment
was fixed in the disposition which gave rise to the debt (dies
adjecta) : in other words, no interpellation is necessary in an obli-
gation ex die, i. e. an obligatio with a dies adjecta ; for then Mora
begins at the expiration of the term. This is expressed by modern
jurists in the maxim, dies interpellat pro homine, ' the day demands
instead of the creditor.'
A further condition of Mora is the absence of all doubt and dis-
pute, at least of all dispute that is not frivolous and vexatious, as
to the existence and amount of the debt. Qui sine dolo malo ad
judicem provocat non videtur moram facere, Dig. 50, 17, 63. 'An
honest appeal to a judge is not deemed a mode of Delay.'
The date of Mora must not be identified with that of the Nativity
of an action (actio nata), an important date, as we shall see, in the
doctrine of Limitation or Prescription of which it is the starting-
point, a starting-point that may be antecedent to Mora. Mora
generally cannot precede an interpellation or demand of payment :
but the omission of a demand is precisely a part of that course of
remissness and negligence whereby, under the rules of Prescription,
a creditor ultimately forfeits his right to sue. Savigny, § 239.
Mora on the part of a person under an obligation to another obliges
him to put the latter in as good a position as he would have been in
if there had been no Mora. Hence the effect of Mora debitoris may
be to make the debitor liable for fructus or interest. So again, if
after Mora some accidental circumstance makes delivery of a thing
impossible, the party bound to deliver it is not discharged from his
liability, since if it had not been for Mora on his part, the plaintiff
might have escaped loss by previous alienation of the thing, or in
some other way. On the same principle, if a thing which a person is
bound to deliver to another falls in value after Mora, he must pay
the latter the highest value which could have been obtained for the
thing at any time, since his default was established. Windscheid,
1 § 280.
Litis contestatio, joinder of issue between the parties to an action,
another landmark of great importance in Roman jurisprudence in
ascertaining and measuring the sanctioning rights and obligations
of suitors, 3 § 180, comm., may be regarded as a kind of bilateral
Disposition to be classed among Quasi-contracts. The consequences,
n. £§ 260-289.1 DE SINGVLIS REBVS FIDEICOMM. 267
2 * _1
however, of litis contestatio, in spite of difference of character, are
to some extent similar to those of Mora. For in the event of con-
demning the defendant the judex has to regard the relations of the
parties, as if restitution had been made at the time of litis contestatio.
Hence a bona fide possessor is liable from this date for all fructus,
although he was not previously liable for such as he had consumed.
4 § 114, comm.
§ 283. Money paid by mistake was not recoverable when the
payer was liable to be sued for double damages, as in the actio
legati per damnationem, Inst. 3, 27, 7, because then the payment is
not deemed to be a mistake, but a compromise, in order to avoid the
chance of condemnation in double damages. The laws protecting
certain rights by duplication of damages, 4 § 171, would have been
evaded if a debtor was allowed to pay the simple damages and then
attempt to recover them back by condictio indebiti soluti.
§ 285. So by English law aliens were not, till recently, allowed
to purchase real property or to take it by devise. Such property,
purchased by an alien or devised to an alien, was forfeited to the
crown. An alien, however, could hold personal property and take
bequests of personal property. In France, formerly, an alien was
not allowed to make a will, but all his property at his death escheated
to the crown by the droit d'aubaine. [Aubain is from alibanus.
Alibi in barbarous Latin produced alibanus, just as longiter produced
lontanus and ante antianus. Diez.]
§ 289. Justinian, following the tendency of previous legislation,
abolished the distinction between legacies and trusts, enacting that
legacies should no longer be governed by the rigours of the civil
law, but subject to the same rules and construed with the same
liberality as trusts, Inst. 2, 20, 2 and 3 Nostra autem constitutio (Cod. 6,
43, 1), quam cum magna fecimus lucubratione, defunctorum voluntates
validiores esse cupientes et non verbis, sed voluntatibus eorum
faventes, disposuit, ut omnibus legatis una sit natura et, quibuscunque
verbis aliquid derelictum sit, liceat legatariis id persequi non solum
per actiones personales, sed etiam per in rem et per hypothecariam
. . . Sed non usque ad earn constitutionem standum esse existi-
mavimus, cum enim antiquitatem invenimus legata quidem stricte
concludentem, fideicommissis autem, quae ex voluntate magis descen-
debant defunctorum, pinguiorem naturam indulgentem : necessarium
esse duximus omnia legata fideicommissis exaequare, ut nulla sit
inter ea differentia.
By English law, a will of realty operates as a mode of conveyance
and document of title without probate, but since the Land Transfer
Act, 1897, it is usually proved. A will of personalty requires for
its authentication to be proved before a court by the oath of the
268 DE FIDEICOMMISSIS [n. §§ 260-289.
executor arid, unless the attestation clause is in a certain form, by
the affidavit of one of the subscribing witnesses j or, if the validity
of the will is disputed, by examination of the witnesses on oath in
the presence of the parties interested. The will itself is deposited
in the registry of the Court of Probate ; a copy of it in parchment,
under the seal of the Court of Probate, delivered to the executor
along with a certificate of proof, is the only proper evidence of his
right to intermeddle with the personal estate of the testator.
The following were the corresponding formalities of Eoman law
prescribed by lex Julia vicesimaria : Paulus, Sent. Kec. 4, 6 : —
' A will is opened in the following manner : the witnesses, or the
majority, who affixed their seals, are summoned and acknowledge
their seals, the cord is broken, the tablets are opened, the will is
read, a copjr is taken, a public seal is affixed to the original, and it
is deposited in the archives, so that if the copy is ever lost there
may be a means of making another.
'In municipalities, colonies, towns, prefectures, wicks, castles,
market towns, a will must be read in the forum or basilica, in the
presence of the attesting witnesses or of respectable persons, between
eight o'clock in the morning and four o'clock in the afternoon ; and,
as soon as a copy has been made, must be sealed up again by the
magistrate in whose presence it was opened.
'A will is intended by the law to be opened immediately after
the death of the testator ; accordingly, though rescripts have varied,
it is now the rule that, if all the parties are present, three or five
days is the interval within which the tablets must be opened ; if
they are absent, the same number of days after they are assembled ;
in order that heirs, legatees, manumitted slaves, and the military
treasury (entitled, 3 § 125, to vicesima hereditatum, i. e. 5 per cent,
on the value of Roman citizens' testamentary successions), may come
into their rights without unnecessary delay.'
In cases of urgency, when the will was opened in the absence
of the attesting witnesses in the presence of respectable persons, it
was afterwards forwarded to the witnesses for the verification of
their seals, Dig. 29, 3, 7. Every one who desired it had the power
of inspecting a will and taking a copy, Dig. 29, 3, 8.
COMMENTARIYS TERTIVS
INTESTATORVM HEREDITATES
§ 1. Intestatorum hereditates
(ex) lege xu tabularum pri-
mum ad suos heredes pertinent.
Inst. 3,1,1. l;Collat. 16,2,1.
§ 2. Sui autem heredes existi-
mantur liberi qui in potentate
morientis fuerunt, ueluti filius
filiaue,nepos neptisue (exfilio),
pronepos proneptisue ex nepote
filio nato prognatus progna-
taue. nee interest (ntr-urn)
naturales (sinty liberi an
adoptiui. ita demum tamen
nepos neptisue et pronepos
proneptisue suorum heredum
numero sunt, si praecedens
persona desierit (in potentate
parentis esse, sine morte id
acciderit,y siue alia ratione,
ueluti emancipatione. nam si
per id tempus quo quisque
moritur filius in potestate eius
sit, nepos ex eo suus heres esse
non potest. idem et in ceteris
deinceps liberorum personis
dictum intellegemus.
Inst. 3, 1, 1. 2; CoUat. 16, 2, 2.
§ 3. Vxor quoque quae in
manu uiri est ei sua heres est,
quia filiae loco est. item nu-
rus quae in filii manu est,
nam et haec neptis loco est.
sed ita demum erit sua heres,
(si) filius, cuius in manu
fuerit, cum pater moritur, in
§ 1. Intestate inheritances by
the law of the Twelve Tables
devolve first on self-successors
(sui heredes).
§ 2. Self-successors are children
in the power of the deceased at
the time of his death, such as
a son or a daughter, a grandchild
by a son, a great-grandchild by a
grandson by a son, whether such
children are natural or adoptive :
subject, however, to this reserva-
tion, that a grandchild or great-
grandchild is only self-successor
when the person in the preceding
degree has ceased to be in the
power of the parent either by
death or some other means, such
as emancipation ; for instance, if
a son was in the power of the
deceased at the time of his death,
a grandson by that son cannot
be a self-successor, and the same
proviso applies to the subsequent
degrees.
§ 3. A wife in the hand of her
husband is a self-successor to him,
for she is in the position of a quasi
daughter ; also a son's wife in
the hand of the son, for she is a
granddaughter: subject, however,
to the proviso that she is not
self-successor if her husband is
270
SVCCESSIO PER VNIVERSITATEM [in. §§ 1-8.
potentate eius non sit. idemque
dicemus et de ea quae in nepotis
manu matrimonii causa sit,
quia proneptis loco est.
Collat. 16,2,3.
§ 4. Postumi quoque, {qui}
si uiuo parente nati essent, in
potestate eius futuri forent, sui
heredes sunt.
Inst. I.e.; Collat. 16,2,4.
§ 5. Idem iuris est de his,
quorum nomine ex lege Aelia
Sentia uel ex senatusconsulto
post mortem patris causa pro-
batur. nam et hi uiuo patre
causa probata in potestate eius
futuri essent.
Collat. 16, 2, 5 ; cf. Collat. 3, 7.
§ 6. Quod etiam de eo filio,
qui ex prima secundaue manci-
pations post mortem patris
manumittitur, intellegemus.
§ 7. Igitur cum filius filiaue
et ex alter o filio nepotes nep-
tesue extant, pariter ad here-
ditatem uocantw ; nee qui
gradu proximior est, ulteriorem
excludit. aequum enim uide-
batur nepotes neptesue in patris
sui locum portionemque suc-
cedere. pari ratione et si nepos
neptisue sit ex filio et ex nepote
pronepos £>roneptisue, simul
omnes uocantur ad heredita-
tem. Inst. 3, 1,6.
§ 8. Et quia placebat nepotes
neptesue, item pronepotes pro-
neptesue in parentis sui locum
succedere, conueniens esse ui-
sum est non in capita, sed (m)
stirpes hereditatem diuidi ; ita
ut filius partem dimidiam here-
ditatis ferat et ex altero filio
duo pluresue nepotes alteram
dimidiam ; item si ex duobus
in the power of his father at the
time of his father's death. A
wife in the hand of a grandson
is a self-successor, subject to the
same proviso, because she is in
the position of a great-grand-
daughter.
§ 4. Afterborn children, who,
if born in the lifetime of the
parent, would have been subject
to his power, are self-successors.
§ 5. Also those in whose behalf
the provisions of the lex Aelia
Sentia or the senatusconsult have
been satisfied by proof of ex-
cusable error subsequently to
the death of the parent, for if
the error had been proved in the
lifetime of the parent they would
have been subject to his power.
§ 6. Also, a son, who has under-
gone a first or second mancipa-
tion and is manumitted after the
death of the father, is a self-suc-
cessor.
§ 7. Accordingly, a son or
daughter and grandchildren by
another son are equally called
to the inheritance ; nor does the
nearer grade exclude the more
remote, for justice seemed to dic-
tate that grandchildren should
succeed to their father's place
and portion. Similarly, a grand-
child by a son and a great-grand-
child by a grandson by a son are
called contemporaneously to the
inheritance.
§ 8. And as it was deemed
to be just that grandchildren
and great-grandchildren should
succeed to their father's place,
it seemed consistent that the
number of stems (stirpes), and
not the number of individuals
(capita), should be the divisor of
the inheritance ; so that a son
should take a moiety, and grand-
in. §§ 1-8.] INTESTATORVM HEKEDITATES
271
filiis nepotes extend, ex altero
filio unus forte uel duo, ex
altero tres aut quattuor, ad
unum aut ad duos dimidia pars
pertineat et ad tres aut quattuor
altera dimidia. Inst. 1. c.
children by another son the other
moiety ; or if two sons left
children, that a single grandchild
or two grandchildren by one
son should take one moiety, and
three or four grandchildren by
the other son the other moiety.
§ 1. The words 'testate' and 'intestate,' in the language of
English lawyers, are only applicable, I believe, to a deceased
person. The awkwardness of having no corresponding adjectives
to couple with succession or inheritance must be my apology for
sometimes speaking of testate or intestate succession or inheritance.
§ 2. For the meaning of suus heres see commentary on 2 §§ 157,
123.
§ 5. Cf. 1 §§ 29, 32 ; 2 § 142.
§6. Cf. 1 § 132; 2 § 141.
DE LEGITIMA AGNATORYM SVCCESSIONE.
§ 9. Si nullus sit suorum
heredum, tune hereditas per-
tinet ex eadem lege xn tabu-
lar um ad agnatos.
Inst. 3, 2, pr.; Gaius in
Collat. 6, 2, 9.
§ ] 0. Fbcantur autem agnati,
qui legitima cognatione iuncti
sunt. legitima autem cognatio
est ea, quae per uirilis sexus
personas coniungitur. itaque
eodem £>atre nati fratres agnati
sibi sunt, qui etiam consan-
guinei uocantur, nee requiritur
an etiam matrem eandem ha-
buerint. item patruus fratris
filio et inuicem is illi agnatus
est. eodem numero sunt fratres
patrueles inter se, id est qui ex
iduobus fratribus progenerati
Bunt, quos plerique etmm con-
sobrinos uocant. qua ratione
scilicet etiam ad plures gradus
agnationis peruenire poterimus.
Inst. 3,2, 1 ; Gaius in Collat.
6, 2, 10.
§ 11. Non tamen omnibus
simul agnates dat lex xn tabu-
larum hereditatem, sed his qui
§ 9. If there is no self-suc-
cessor, the inheritance devolves
by the same law of the Twelve
Tables on the agnates.
§ 10. Those are called agnates
who are related by civil law.
Civil relationship is kinship
through males. Thus brothers
by the same father are agnates,
whether by different mothers or
not, and are called consangui-
neous ; and a father's consan-
guineous brother is agnate to the
nephew, and vice versa ; and the
sons of consanguineous brothers,
who are generally called conso-
brini, are mutual agnates ; so
that there are various degrees of
agnation.
§ 11. Agnates are not all
called simultaneously to the in-
heritance by the law of the
272 SVCCESSIO PER VNIVERSITATEM [m. £& 9-17.
L a 3
turn, cum certum est aliquem
intestatum decessisse, proximo
gradu sunt. Inst. 3, 2, 2 ; Gaius
inCollat. 16,2, 11.
§ 12. Nee in eo iure successio
est. ideoque si agnatus proxi-
mus hereditatem omiserit uel
antequam adierit decesserit, se-
quentibus nihil iuris ex lege
conpetit.
Gaius in Collat. 16, 2, 12.
§ 13. Ideo autem non mortis
tempore quis proximus fuerit
requirimus, sed eo tempore, quo
certum fuerit aliquem intesta-
tum decessisse, quia si quis
testamento /acto decesserit, me-
lius esse uisum est tune requiri
proximum, cum certum esse
coeperit neminem ex eo testa-
mento fore heredem. Inst.
1. c.; Gaius in Collat. 16, 2, 13.
§ 14. Quod ad feminas tarn en
attinet, in hoc iure aliud in
ipsarum hereditatibus capiendis
placuit, aliud in ceterorum
[bonis] ab his capiendis. nam
feminarum hereditates proinde
ad nos agnationis iure redeunt
atque masculorum ; nostrae
uero hereditates ad feminas
ultra consanguineorum gradum
non pertinent, itaque soror
fratri sororiue legitima heres
est, amita uero et fratris filia
legitima heres esse (non potest.
soror is autem nobis loco est}
etiam mater aut nouerea, quae
per in manum conuentionem
apud patrem nostrum iura filiae
nacta est. Inst. 3, 2, 3 ; Gaius
in Collat. 16, 2, 14.
§ 15. Si ei qui defunctus erit,
sit frater et alterius fratris
filius, sicut ex superioribus
Twelve Tables, but only those
of the nearest degree at the
moment when it is certain that
the deceased is intestate.
§ 12. And in title by agnation
there is no succession ; that is to
say, if an agnate of the nearest
grade abstains from taking the
inheritance, or die before he has
entered on it, the agnates of the
next grade do not become en-
titled under the statute.
§ 13. The date for determining
the nearest agnate is not the
moment of death, but the mo-
ment when intestacy is certain,
because it seemed better, when
a will is left, to take the nearest
agnate at the moment when it is
ascertained that there will be no
testamentary heir.
§ 14. As to females, the rules
of civil law are not the same in
respect of the inheritances which
they leave and in respect of the
inheritances which they take.
An inheritance left by a female
is acquired by the same title of
agnation as an inheritance left
by a male, but an inheritance
left by a male does not de-
volve on females beyond sisters
born of the same father. Thus
a sister is by civil law the
heir of a sister or brother by the
same father, but the sister of a
father and daughter of a brother
have no civil title to the inheri-
tance. The same rights as those
of a sister belong to a mother or
stepmother who passes into the
hand of a father by marriage
and acquires the position of a
daughter.
§ 15. If the deceased leaves a
brother and another brother's
son, as observed before (§ ll)t
m. §§9-17.] DE AGNATORVM SVCCESSIONE
273
intellegitur, frater potior est,
quia gradu praecedit. sed alia
facta est iuris interpretatio
inter suos heredes. Inst.3,2,5;
Gaius in Collat. 16, 2, 15.
§ 16. Quodsi defuncti nullus
frater extet, {sed) sint liberi
fratrum, ad omnes quidem here-
ditas pertinet; sed quaesitum
est, si dispari forte numero sint
nati, ut ex uno unus uel duo,
ex altero tres uel quattuor,
utrum in stirpes diuidenda sit
hereditas, sicut inter suos here-
des iuris est, an potius in capita,
iam dudum tamen placuit in
capita diuidendam esse heredi-
tatem. itaque quotquot erunt
ab utraque parte personae, in
tot portiones hereditas diuide-
tur, ita ut singuli singulas por-
tiones ferant.
Gaius in Collat. 16, 2, 16.
§ 17. Si nullus agnatus sit,
eadem lex xii tabularurn gen-
tiles ad hereditatem uocat. qui
sint autem gentiles, primo com-
mentario rettulimus ; et cum
illic admonuerinius to turn gen-
tilicium ius in desuetudinem
abiisse, superuacuum est hoc
quoque loco de eadern re curio-
sius tractare.
the brother has priority, because
he is nearer in degree, which
differs from the rule applied to
self -successors.
§ 1 6. If the deceased leaves no
brother, but children of more
than one brother, they are all
entitled to the inheritance; and
it was once a question, in case
the brothers left an unequal
number of children, as if one of
them leaves only one child and
another three or four, whether the
number of stems (stirpes) was to
be the divisor of the inheritance,
as among self-successors, or the
number of individuals (capita) ;
however, it has long been settled
that the divisor is the number
of individuals. Accordingly, the
total number of persons deter-
mines the number of parts into
which the inheritance must be
divided, and each individual takes
an equal portion.
§ 1 7. In the absence of agnates
the same law of the Twelve
Tables calls the gentiles to the
inheritance. Who are gentiles
was explained in the first book
(1 § 164 a), and as we then stated
that the whole law relating to
gentiles is obsolete, it is unneces-
sary to go into its details on the
present occasion.
§ 9. The term agnatio has already occurred (2 § 131) in the
exposition of testacy, where it denoted the birth of a suus heres,
and here in the doctrine of intestacy it has an allied signification.
The same persons who in relation to a common ancestor are sui
heredes, in relation to one another are agnati. Agnates, accordingly,
may be described as all the members of a civil family, cf. 1 § 156 ;
but then we must add that the civil family may either be actual or
ideal, meaning by ideal either a civil family once actual but disinte-
grated by the death of the paterfamilias, or a civil family, which
was never actually subject to a common paterfamilias, but which
would be so if we imagine a deceased common ancestor to be alive.
While the common ancestor survives, the bonds of agnation are close,
274 SVCCESSIO PER VNIVERSITATEM [m. §§ 9-17.
and the family is actual ; after his death, when his descendants
have formed separate families, all the members of those families are
still agnates, because they are members of an ideal family which
once was actual ; and the descendants of those descendants are
more remotely agnates, because, though never members of an actual
family, they would have been so if the common ancestor had lived
for, say, a hundred years. Similarly the wider group of gentiles,
§17, consists of persons who, it may be supposed, would be under
the power of some long-forgotten common ancestor, if he were alive.
The words of the Twelve Tables creating title by agnation are
as follow : Si intestato moritur, cui suus heres nee escit, adgnatus
proximus familiam habeto. ' If a man die intestate, leaving no self-
successor, his nearest agnate shall have the family property.'
§ 10. Consanguinei, brothers or sisters of the same father, opposed
to uterini, brothers or sisters by the same mother, are properly
included among agnates, if they have not undergone any capitis
deminutio, being agnates of the first degree; but as females were
only entitled to inherit by the first degree of agnation, § 14, the
word 'agnates' was sometimes limited to denote male agnates.
Agnati autem sunt cognati virilis sexus per virilem descendentes,
Paulus, Sent. Eec. 4, 8, 13. 'Agnates are male cognates related
through males.' It is to be remembered that the tie of agnation
embraced persons who were adopted into a family, as well as such
natural relations or cognates as came within its principle.
§ 12. If the nearest degree of agnates in existence omitted to
take the inheritance, or died before acceptance, the inheritance did
not devolve on the next degree of agnates ; thus the jus civile
did not admit a successio graduum, as for instance if a man died
intestate leaving a brother and a nephew, the son of a deceased
brother, and the surviving brother did not enter on the inheritance,
the right to do so did not pass from him to the nephew, who was
next in succession but remained vacant, no repudiation of hereditas
delata being it would seem possible in early law. This rule was
a scrupulous interpretation of the exact words of the Twelve Tables :
Si intestato moritur cui suus heres nee escit, adgnatus proximtis
familiam habeto. As the law of inheritance based on the Twelve
Tables found no place for a successio graduum, so neither did it
admit a successio ordinum. Thus if the proximus agnatus, or
proximi agnati, abstained from taking the inheritance, the order
of gentiles, which was next by civil law to that of the agnates, could
make no claim to it. ' In legitimis hereditatibus successio non est.'
The abeyance of the inheritance arising from these circumstances
was cut short by usucapio pro herede, 2 § 52, &c. But a more suitable
way of obviating this inconvenience of the ancient law was found in
in. §§ 9-17.] DE AGNATOKVM SVCCESSIONE 275
the bonorum possessio of the praetor, whereby in default of any one
claiming by a valid civil title, the nearest blood relation, or cognate,
was put in the position of heir. Under these praetorian rules of
inheritance, at least when they were not simply confirmatory of the
civil law, cf. § 28, both successio graduum and successio ordinum
were possible. Justinian, however, abolished the rule of the civil law
itself, and allowed a devolution through the degrees of agnation, on the
ground that, as the burden of tutela devolved through the degrees of
agnation, there ought to be a corresponding and compensating devolu-
tion of the advantages of inheritance, Inst. 3, 2, 7. This change, how-
ever, was deprived of importance by the subsequent Novella, 1 18, which
consolidated and amended the law of inheritance, discardingthe agnatic
principle of the old law, and substituting for it that by cognatio.
§ 1 3. The moment at which it is ascertained that the deceased is
intestate will be separated by an interval from the moment of his
decease, especially when the intestacy is caused by an heir instituted
in a will not accepting within the time of cretio or by his subsequent
repudiation or incapacity, or by the failure of the condition on which
he was instituted. In this interval the nearest agnate may die, and
a remoter agnate become the nearest agnate. It therefore was
necessary to determine whether the title of nearest agnate is acquired
at the moment of decease or of ascertained intestacy ; and the latter
moment was selected. If the death of the testator had been selected,
then, if the nearest agnate died in the interval, there would be no
heir; neither the heir of the deceased, as the right to enter was
strictly personal, nor the then next agnate, as proxumus, the word
used in the Twelve Tables, excludes successio graduum: nor the
gentiles, as the words (si adgnatus nee escit) exclude successio ordinum.
§ 14. The limitation, in respect of females, of title by agnation
to females who were agnates in the first degree (consanguineae) was
not contained in the Twelve Tables, but introduced by the restrictive
interpretation of jurists following the analogy of the lex Voconia
(B.C. 169), which imposed disabilities on women, Paulus, Sent.
Rec. 4, 8, 22. Cf. Inst. 3, 2, 3 Media autem jurisprudentia,
quae erat lege quidem duodecim tabularum junior, imperiali autem
dispositione anterior, subtilitate quadam excogitata, praefatam dif*
ferentiam inducebat. The harshness of this limitation was miti-
gated by the praetors, who introduced title by cognation, and
allowed females of remoter degrees of agnation to succeed in the
order of cognates in default of heirs by title of agnation; but
Justinian totally abolished the limitation, and restored the rule
of the Twelve Tables, allowing females to succeed in the order of
agnates, however remote might be their degree of agnation, pro-
vided that no nearer degree was in existence.
T 2
276 SVCCESSIO PER VNIVERSITATEM [in. §§ 18-38.
The celebrated Novella, 118, as above stated, totally abolished
title by agnation, and made succession by intestacy among collaterals
dependent on the degrees of cognation or nearness of natural re-
lationship. In this system of inheritance, from which our own law
for the distribution of personalty is derived, no difference is made
between males and females.
§ 18. Hactenus lege xu tabu-
larum finitae sunt intestatorum
hereditates. quod ius queinad-
modum strictum frierit, palam
est intellegere.
§ 19. Statim enini emancipati
liberi nullum ius in hereditatem
parentis ex ea lege habent, cum
desierint sui heredes esse.
§ 20. Jdem iuris est, si ideo
liberi non sint in potestate pa-
tris, quia sint cum eo ciuitate
J?omana donati nee ab impera-
tore in potestatem redacti fue-
rint.
§ 21. Item agnati capite de-
minuti non admittuntur ex ea
lege ad hereditatem, quia nomen
agnationis capitis deminutione
perimitur.
§ 22. Item proximo agnato
non adeunte hereditatem nihilo
magis sequens iure legitimo ad-
mittitur.
§ 23. Item feminae agnatae,
quaecumque consanguineorum
gradum excedunt, nihil iuris ex
lege habent.
§ 24. Similiter non admit-
tuntur cognati, qui per feminini
sexus personas necessitudine
iunguntur; adeo quidem, ut nee
inter matrem et filium filiamue
§ 18. These are all the pro-
visions in the law of the Twelve
Tables for intestate devolution,
and how strictly they operated
is patent.
§ 19. For instance, children
immediately they are emanci-
pated have no right to the in-
heritance of their parent under
that law, since they are thereby
divested of the character of
self-successors.
§ 20. In the same position also
are children whose freedom from
the power of their parent was
only caused by the fact that on
their receiving jointly with their
father a grant of Koman citizen-
ship (1 § 94), there was no express
order of the emperor subjecting
them to parental power.
§21. Again, agnates who have
undergone a capitis deminutio are
not admitted to the inheritance
under this law, title by agnation
being extinguished by capitis
deminutio.
§ 22. And if the nearest agnate
does not enter on an inheritance,
the next degree, according to the
law of the Twelve Tables, is not
in any way entitled to succeed.
§ 23. Female agnates beyond
the degree of sisters by the same
father have no title to succeed
under this statute.
§ 24. Cognates who trace their
kin through females are similarly
barred, so that even a mother and
a son or daughter have no re-
ciprocal right of succession, un-
in. §§ 18-38.] BONORVM POSSESSIO INTESTATI 277
ultro citroque hereditatis ca-
piendae ius conpetat, praeter-
quam si per in manum conuen-
tionem consanguinitatis iura
inter eos constiterint.
§ 25. Sed hae iuris iniquitates
edictopraetoris emendataesunt.
§ 26. Nam liberos omnes, qui
legitimo iure deficiuntur, uocat
ad hereditatem, proinde ac si
in potestate parentis mortis
tempore fuissent, siue soli sint
siue etiam sui heredes, id est
qui in potestate patris fuerunt,
concurrant. Inst. 3, 1, 9.
§ 27. Agnatos autem capite
deminutos non secundo gradu
post suos heredes uocat, id est
non eo gradu uocat, quo per
legem uocarentur, si capite de-
minuti non essent, sed tertio
proximitatis nomine; licet enim
capitis deminutione ius legiti-
mum perdiderint, certe cogna-
tionis iura retinent. itaque si
quis alius sit qui integrum ius
agnationis habebit, is potior
erit, etiamsi longiore gradu
fuerit. Inst. 3, 5,1.
§ 28. Idem iuris est, ut qui-
dam putant, in eius agnati per-
sona, qui proximo agnato omit-
tente hereditatem nihilo magis
iure legitimo admittitur. sed
sunt qui putant hune eodem
gradu a praetore uocari, quo
etiam per legem agnatis here-
ditas datur.
§ 29. Feminae certe agnatae,
quae consanguineorum gradum
excedunt, tertio gradu uocantur,
id est si neque suus heres neque
agnatus ullus erit. Inst. 3, 5,2.
less by subjection to the hand
of the husband the mother has
become a quasi sister to her
children.
§ 25. But to these legal in-
equalities the edict of the praetor
administers a corrective.
§ 26. For all children whose
statutory title fails are called by
the praetor to the inheritance, just
as if they had been in the power
of their parent at the time of his
decease, whether they come in
alone or in concurrence with self-
successors, that is, with other chil-
dren who were actually subject to
the power of the parent.
§27. Agnates who have under-
gone a capitis deminutio minima
are called by the praetor, not in-
deed in the next degree to self-suc-
cessors, that is, in the order in
which the law of the Twelve
Tables would have called them
but for their capitis deminutio,
but in the third rank under the
designation of cognates (next of
kin) ; for though their capitis
deminutio has blotted out their
statutory title, they nevertheless
are still entitled as cognates ;
though if another person exists
with unimpaired title by agnation,
he is called in preference, although
he may be in a remoter degree.
§ 28. The rule is similar, ac-
cording to some, in respect of
the remoter agnate who has no
statutory title to succeed on the
nearest agnate failing to take ;
according to others, the praetor
calls him to the succession in the
order allotted by the statute to
agnates.
§ 29. Female agnates, at all
events, beyond the degree of
sisters are called in the third
degree, that is to say, after self-
successors and other agnates.
278 SVCCESSIO PER VNIVERSITATEM [in. §§ 18-38.
§ 30. Eodem gradu uocantur
etiam eae personae, quae per
feminini sexus personas copu-
latae sunt. Inst. 1. c.
§ 31. Liberi quoque qui in
adoptiua familia aunt ad natu-
ralium parentum hereditatem
hoc eodem gradu uocawtur.
Inst. 3, 5, 3.
§ 32. Quos autem praetor
uocat ad hereditatem, hi heredes
ipso quidem iure non | fiunt ;
nam praetor heredes facere non
•potest ; per legem \ enim tantum
uel similem iuris constitu-
tionem heredes fi\\int, ueluti
per senatusconsultum et con-
stitutionem principalem. sed
cum eis praetor (dot bonorum
possessionem} , loco heredum
cowstituuntur.
§ 33. | A.dhuc autem etiam.
alios conplures gradus praetor
facit in \ bonorum y^ossessioni-
bus dandis, dum id &git, ne
quis sine successore \ moriatur.
de quibus in his commentariis
consulto | non agimus, cum hoc
ius totum propriis commentariis
ex\ecuti simus.
§ 33 a. Hoc solum admo-
nuisse sufficit 1
hereditatem
ta-
• innidiosum.
•per\
in manum coTiueTitionem iura
consanguim'£a£is najcta
fratre
— (5 uersus in G legi nequeunt)
(8 uersus in C legi nequeunt)
nam — I
— | heredit&s non pertine-|
(8 uersus in C legi ne-
queunt) 1
§ 33 6. Aliquando tamen ne-
que emendandi neque inpu-
gnandi ueteris iuris sed \ magis
§ 30. So are those persons
who trace their kindred through
females.
§ 31. Children in an adoptive
family are called to succeed their
natural parents in the same order.
§ 32. Those whom the praetor
calls to an inheritance do not be-
come heirs (heredes) at civil law,
for the praetor cannot make an
heres ; only a statute or similar
ordinance, such as a decree of the
senate or an imperial constitution,
being able to do so ; thus the
praetor's grant of possession only
puts the grantee in the position
of an heir.
§ 33. Several additional grades
of bonorum possessio are recog-
nized by the praetor on account
of his desire that no one may die
with out a successor; but I forbear
to examine them on the present
occasion, because I have handled
the whole subject of title by
descent in a separate treatise
devoted to this matter.
§33 a. [?Sc. Tertullianum; cf.
Inst. 3, 3 ; Ulp. 26, 8.]
§33&. Sometimes, however, the
object of the praetor in granting
bonorum possessio is rather to
in. §§ 18-38.] BONORVM POSSESSIO INTESTATI 279
confirmandi gratia pollicetur
bonorum possessionem. nam
ttlis quoque, \ qui recfe facto
testamento heredes instituti
sunt, | dat secundum tabulas
bonorum possessionem.
§ 34. item ab intestato here-
des suos et agnafos ad bonorum
possessionem uocat. quibus
casibus beneficium eius in eo
solo uidetur aliquam utilitatem
habere, ut is, qui ita bonorum
possessionem petit, interdicto
cuius principium est QVORVM
BONORVM uti possit. cuius in-
terdicti quae sit utilitas, suo
loco proponemus. alioquin re-
mota quoque bonorum posses-
sione ad eos hereditas pertinet
iure ciuili.
§ 35. Ceterum saepe quibus-
dam ita datur bonorum posses-
sio, ut is cui data sit (mm)
optineat hereditatem ; quae bo-
norum possessio dicitur sine re.
§ 36. Nam si uerbi gratia
iure facto testamento heres in-
stifatus creuerit hereditatem,
sed bonorum possessionem se-
cundum tabulas testamenti pe-
tere noluerit, contentus eo quod
iure ciuiH heres sit, nihilo mi-
nus ii, qui nullo facto testa-
mento ad intestati bona uocan-
tur, possunt petere bonorum
possessionem ; sed sine re ad
eos [hereditas] pertinet, cum
testamento scriptus heres euin-
cere hereditatem possit,
§ 37. Idem iuris est, si inte-
stato aliquo mortuo suus heres
no\\uent petere bonorum pos-
sessionem, contentus legitimo
iure 1 et agnato conpetit
quidem bonorum possessio, sed
sine re, quia euinci hereditas a
suo herede potest. et [illud]
conuenienter, si ad agnatuin
confirm the old law than to amend
or contradict it, for he likewise
gives juxta-tabular possession to
those who have been instituted
heredes in a legally valid will.
§ 34. So also, when a man dies
intestate, the praetor grants bono-
rum possessio to self-successors
and agnates, the only advantage
they derive from the grant being
that it entitles them to the inter-
dict beginning with the words :
' Whatsoever portion of the
goods ' (the use of which will be
explained in due time and place,
4 § 144), for independently of the
grant of possession, they are en-
titled to the inheritance by the
civil law.
§ 35. Possession is often granted
to a person who will not in fact
obtain the inheritance, in this
case the grant is said to be one
which has no eifect (sine re).
§ 36. For instance, if an heir
instituted by a duly executed will
formally accepts the inheritance,
but declines to demand possession
according to the will, contenting
himself with his title at civil
law, those who without a will
would be entitled by intestacy may
nevertheless obtain a grant of
possession from the praetor, but
the grant will be one having
no effect (sine re), because the
testamentary heir can enforce his
civil title to the inheritance
against them.
§ 37. The same happens when
a man dies intestate and a self-
successor declines to demand pos-
session, contenting himself with
his civil title ; for an agnate may
obtain a grant of possession, but
it will have no effect, because the
civil inheritance can be claimed
by the self-successor. Similarly,
280 SVCCESSIO PER VNIVERSITATEM [in. §§ 18-38.
iure ciuili pertinet hereditas et if an agnate entitled by civil law
is adierit hereditatein, sec? bo- accepts the civil inheritance but
no rum possessionem petere no- omits to demand possession, a
luerit, et [si quis ex proximis] cognate can obtain a grant of
cognatuspetierit,smerehabebit possession, but it has no effect,
bonorum possessionem propter for tlae same reason-
eandem rationem.
§ 38. Sunt et alii quidam § 38. There are other similar
similes casus, quorum aliquos cases, some of which were men-
superiore commentario tradidi- tioned in the preceding book,
mus.
§ 25. To the divergence of the civil (agnatio) and natural (cognatio)
families, to the desire, that is, to correct the non-natural devolution
of successions, Sir Henry Maine attributes the introduction in Koman
jurisprudence of Testamentary dispositions (Ancient Law, ch. vi).
§ 32. The praetor, by virtue of his executive power (imperium) :
(1) Gave bonorum possessio to a person who had a legal title to the
inheritance, that is, he enforced the rights conferred on persons by
the civil law (juris civilis confirmandi causa) ; e. g. he gave bonorum
possessio secundum tabulas to the heir instituted in a will valid by
civil law, § 36, or bonorum possessio contra tabulas to certain prae-
termitted self-successors, 2 § 125, or bonorum possessio ab intestato
to the suus heres or the agnate, § 37 ; cf. § 34.
(2) He also gave bonorum possessio to persons on whom the civil
law had conferred no rights, that is, he supplemented the law (juris
civilis adjuvandi causa) ; e. g. in default of sui heredes and proximi
agnati he granted bonorum possessio ab intestato to cognates ; he
gave juxta-tabular possession to the heir under a will invalid at
civil law, because the testator had been incapacitated at some period
between the execution of his will and his decease : such grant of
possession being ineffective (sine re) against any person entitled ab
intestato by the civil law, 2 §§ 147, 149, and Ulpian, 23. 6. So again
he gave bonorum possessio secundum tabulas to the heir under a
will invalid at civil law, from want of mancipation or nuncupation,
2 § 149, and such will was ineffective (sine re) against an agnate
claiming as heir by intestacy, until a rescript of the Emperor
Antoninus (probably Marcus Aurelius) made such bonorum possessio
effective (cum re) by giving the grantee a good defence against the
civil heir, 2 §§ 119, 120.
(3) He sometimes, though rarely and by something like a stretch
of his authority, gave possession adverse to rights which the law
had conferred on other persons, that is, he contradicted or corrected
the law. The principal cases in which he did this were those in
which he protected the interests of emancipated children. Thus by
in. §§18-38.] BONORVM POSSESSIO INTESTATI . 281
bonorum possessio contra tabulas and by bonorum possessio intes-
tati he put emancipati in the same position as sui, giving them
effective possession (cum re) against the claim of the civil heir. He
also gave juxta-tabular possession to the afterborn stranger (postumus
alienus), Inst. 3, 9 pr. who, as an uncertain person, could not be
instituted by the civil law, 2 § 242. The difficulty which the
praetor found in making his title to the inheritance superior to that
of Jus Civile is shown by the fact that it required a special act of
legislation to make the praetorian will effective (cum re) against
the agnatic heir ab intestato, and it is also illustrated by the con-
troversy mentioned in § 28, where we see that it is doubtful whether
he could make use of the principle of successio graduum, which he
adopted in his edict, so as to put an agnate who had no title at law
in the position of civil heir.
As in the two latter functions of supplementing and correcting
the law, the praetor did what is elsewhere performed by courts of
equity, we have sometimes translated the contrasted terms heres
and bonorum possessor by the terms ' legal successor or heir ' and
' equitable successor or heir.'
The claim of an heir (heres) founded on a title at civil law was
called hereditatis petitio ; a claim founded on a praetorian title, e.g.
cognation, was pursued by the Interdict Quorum bonorum, or, in the
latest period, by possessoria hereditatis petitio, Dig. 5, 5, 1. Such at
least is Savigny's view, who makes no essential difference between
the Interdict Quorum bonorum and Possessoria hereditatis petitio.
According to Vangerow, § 509, and more recent writers, however,
the Interdict was confined to the purpose of obtaining Possession
of the corporeal things belonging to the inheritance, separate fictitious
actions being employed on account of other rights and liabilities, for
the equitable or praetorian successor could not sue or be sued by
direct actions. Thus it was only at a comparatively late time that
Possessoria hereditatis petitio was allowed as a general means of
claiming the inheritance when a claimant (e. g. cognatus or emanci-
patus) had a praetorian title, corresponding to Hereditatis petitio,
which was the means of claiming the civil inheritance. Accordingly the
Interdict could not be brought, like Hereditatis petitio, against debtors
to the inheritance ; but only against possessors of corporeal heredita-
ments. Interdicto quoru m bonorum debitores hereditarii non tenentur,
sed tantum corporum possessores, Dig. 43, 2, 2. Cf. Sohm, p. 552.
Huschke supposes that after sujficit Gaius explained the provisions
of the S. C. Tertullianum, passed in the time of Hadrian, on which
he wrote a separate treatise.
§ 33 a. The orders or grades or classes to whom the praetor suc-
cessively granted bonorum possessio in intestacy were as follow :
282 SVCCESSIO PER VNIVERSITATEM [in. §§ 18-38.
(1) Children (liberi), including not only sui heredes, but also
emancipated children, § 26, on condition that the latter brought
their goods into hotchpot (collatio bonorum), Dig. 37, 6. Children
given in adoption were not admitted in this order, but in the third
order of cognates, § 31.
(2) Statutory or civil heirs (legitimi), i. e. all who were entitled
to inherit under the Twelve Tables or any statute ; e. g. agnates who
were entitled under the Twelve Tables ; mothers, who, though
belonging to a different civil family, were entitled to succeed their
children under the Sc. Tertullianum, a statutoiy departure from the
principles of the old civil law ; children, who were entitled to succeed
their mothers under the Sc. Orphitianum, a further departure from
the agnatic principle, probably passed soon after the Institutes of
Gaius were written, on which this jurist also wrote a special com-
mentary ; and sui heredes who had repudiated or omitted to demand
possession as members of the first order within the interval allowed,
namely, a year.
(3) Next of kin (proximi cognati) to the sixth degree, including
those who had neglected to claim in the first or second order.
(4) Husband and wife inter se (vir et uxor), when the wife is not
in manu. A wife in manu would be quasi daughter and therefore
sua heres and entitled to succeed with liberi in the first order.
These various grades of title are called unde liberi, unde legitimi,
unde cognati, unde vir et uxor, phrases which properly denote
those articles of the edict in which these classes are summoned
to the succession : ea pars edicti unde liberi vocantur, &c., but are
used by Eoman lawyers as epithets of intestate bonorum possessio.
The degrees of cognation in a direct line are the number of
generations that separate a descendant from an ascendant : to com-
pute the degrees of collateral cognation we must add the degrees
of direct cognation. Thus a man is one degree from his father,
and therefore two from his brother and three from his nephew.
He is two degrees from his grandfather, and therefore three from
his uncle and four from his first cousin or cousin german (con-
sobrinus). He is three degrees from his greats-grandfather, and
therefore four from his great*uncl© and five from his great-uncle's
son (propior sobrino) and six from his second cousin (sobrinus), that
is, his great-uncle's grandson, for second cousins are the children
of first cousins. He is seven degrees from his second cousin's
children, and this is the only case in which the seventh degree
of cognation was recognized as giving a title to succeed in intestacy,
the law only recognizing in other lines the sixth degree of cognation.
In English law collateral relationship is a title to inheritance or
succession without any limit.
in. §§ 39-45.] DE SVCCESSIONE LIBERTORVM CIVIVM 283
§ 36. Originally the person entitled to the praetorian succession
was required to address a formal demand to the magistrate: but
under Justinian any signification of intention to accept the suc-
cession was sufficient without a demand. The interval allowed
for this signification of intention (agnitio) to a parent or child
of the defunct was a year, to other claimants a hundred days.
If a person in a superior order or degree omitted to signify his
acceptance in the interval allowed, the succession then devolved
to the next degree or order. If the person who thus omitted to
signify acceptance had only a praetorian title to the succession, his
right was entirely forfeited by the omission ; but if he had a prior
title at civil law he could by hereditatis petitio evict the bonorum
possessor, who accordingly would have only a nugatory or ineffective
possession (sine re).
(As to bonorum possessio intestati cf. Sohm, p. 566.)
§ 39. Nunc de libertorum
bonis uideamus. Inst. 3, 7 pr.
§ 40. Olim itaque licebat
liberto patronum suum inpune
testamento praeterire. nam ita
demum lex xn tabularum ad
hereditatem liberti uocabat
patromim, si intestates mor-
tuus esset libertus nullo suo
herede relicto. itaque intestato
quoque mortuo liberto, si is
suum heredem reliquerat, nib.il
in bonis eius patrono iuris erat.
et siquidem ex naturalibus
liberis aliquem suum heredem
reliquisset, nulla uidebatur esse
querella ; si uero uel adoptiuus
films filiaue uel uxor quae in
manu esset sua heres esset,
aperte iniquum erat nihil iuris
patrono superesse. Inst. 1. c.
§ 41. Qua de causa postea
praetoris edicto haec iuris ini-
quitas emendata est. siue enim
faciat testamentum libertus, iu-
betur ita testari, ut patrono suo
partem dirnidiam bonorum suo-
rum relinquatf, et si aut nihil
aut minus quam partem dimi-
diam reliquerit, datur patrono
§ 39. Succession to freedmen
next demands our notice.
§ 40. Freedmen were originally
allowed to pass over their patron
in their testamentary dispositions.
For by the law of the Twelve
Tables the inheritance of a freed-
man only devolved on his patron
when he died intestate and with-
out leaving a self-successor. So if
he died intestate leaving a self-suc-
cessor, the patron was excluded,
which, if the self-successor was a
natural child, was no grievance ;
but if the self-successor was
an adoptive child or a wife in
hand (manu), it was clearly hard
that they should bar all claim of
the patron.
§ 41. Accordingly, at a later
period, the praetor's edict cor-
rected this injustice of the law.
For if a freedman makes a will, he
is commanded to leave a moiety
of his fortune to his patron ; and
if he leaves him nothing, or less
than a moiety, the patron can
obtain contra-tabular possession
284 SVCCESSIO PER VNIVERSITATEM [in. §§ 39-54.
contra tabulas testament! partis
dimidiae bonorum possessio ; si
uero intestatus moriatur suo he-
rede relicto adoptiuo filio (uel)
uxore quae in manu ipsius esset,
uel nuru quae in manu filii
eius fuerit, datur aeque patrono
aduersus hos suos heredes par-
tis dimidiae bonorum possessio.
prosunt autem liberto ad ex-
cludendum patronum naturales
liberi, non solum quos in po-
testate mortis tempore habet,
sed etiam emancipati et in
adoptionem dati, si modo aliqua
ex parte heredes scripti sint,
aut praeteriti contra, tabulas
testamenti bonorum posses-
sionem ex edicto petierint; nam
exheredat^ nullo modo repel-
lunt patronum. Inst. 3, 7, 1 .
§ 42. Postea lege Papia aucta
sunt iura patronorum, quod ad
locupletiores libertos pertinet.
cautum est enim ea lege, ut ex
bonis eius, qui sestertiorum
c entum milium plurisue patri-
monium reliquerit, et pauciores
quam tres liberos habebit, siue
is testamento facto siue inte-
stato mortuus erit, uirilis pars
patrono debeatur. itaque cum
unum filium unamuefiliamhere-
dem reliquerit libertus, proinde
pars dimidia patrono debetur,
ac si sine ullo filio filiaue more-
retur ; cum uero duos duasue
heredes reliquerit, tertia pars
debetur; si tres relinquat, re-
pellitur patronus. Inst. 3, 7, 2.
§ 43. In bonis libertinarum
nullam iniuriam antique iure
patiebantur patroni. cum enim
hae in patronorum legitima
tutela essent, non aliter scilicet
testamentum facere poterant
quam patrono auctore. itaque
of a moiety from the praetor.
And if he die intestate, leaving as
self-successor an adoptive son or
a wife in his hand or a son's wife
in the hand of his son, the patron
can obtain in the same way against
these self-successors intestate pos-
session of a moietyf rom the praetor.
But the freedman is enabled to
exclude the patron if he leaves
natural children, whether in his
power at the time of his death or
emancipated or given in adoption,
provided he leaves them any por-
tion of the inheritance, or that,
being passed over in silence, they
have demanded contra - tabular
possession under the edict ; for,
if they are disinherited, they do
not at all bar the patron.
§ 42. At a still later period the
lex Papia Poppaea augmented
the rights of the patron against
the estate of more opulent freed-
men. For by the provisions of
this statute whenever a freedman
leaves property of the value of a
hundred thousand sesterces and
upwards, and not so many as three
children, whether he dies testate
or intestate, a portion equal to
that of a single child is due to
the patron. Accordingly, if a
single son or daughter survives,
half the estate is claimable by
the patron, just as if the freed-
man had died childless ; if two
children inherit, a third of the
property belongs to the patron ;
if three children survive, the
patron is excluded.
§ 43. In respect of the property
of freed women no wrong could pos-
sibly be done to the patron under
the ancient law : for, as the patron
was statutory guardian of the
freedwoman, her will was not
valid without his sanction, so that,
in. §§ 39-54.] DE SVCCESSIONE LIBERTORVM CIVIVM 285
siue auctor ad testamentum
faciendum factus erat 1
relict - — |ctus erat, seque-
batur hereditas ; si uero auctor |
ei f&ctus non erat, et intestata
liberta moriebatu?% | ad
^?er|tinebat ; nee enim ullus
olim possit patron um a
bonis libertae rejpellere.
§ 44. Sed postea lex Papia
cum quattuor liberorum iure
libertinas tutela patronorum
liberaret et eo modo concederet
eis etiam sine tu|toris auctori-
tate eondere testamentum, pro-
spexit, | ut pro numero libero-
rum, quos liberta mortis tem-
po\re habuerit, uirilis pars pa-
trono debeatur. er|go ex bonis
eius quae 1 liberos reli
|a possid
here-
ad patronum pertinet.
§ 45. Quae diximus de pa-
trono, eadem intellegemus et
de filio patroni ; item de nepote
ex filio (et de} pronepofe ex ne-
pote filio nato progn&to.
§ 46. Filia uero patroni et
neptis ex filio et pronepfa's ex
nepote filio nato prpgnatfa olim
quidem eo iure, quod lege xn
tabularum patrono datum est,
sexus | patronorum li-
beros • • testamenti liberti
(auty ab intestate contra filium
adoptiuum uel uxorem nurumue
quae in manu fuerit, bonorum
possessionem petat, trium libe-
rorum iure lege Papia conse-
quitur ; aliter hoc ius non
habet.
if he sanctioned a will, he either
would be therein instituted heir,
or, if not, had only himself to
blame : for if he did not sanction
a will and consequently the freed-
woman died intestate, he was as-
sured of the inheritance, for she
could leave no heres or bonorum
possessor who could bar the claim
of the patron.
§44. But when at a subsequent
period, by the enactment of the lex
Papia, four children were made
a ground for releasing a freed-
woman from the guardianship of
her patron, so that his sanction
ceased to be necessary to the
validity of her will, it was provided
by that law that the patron should
have a claim to a portion of her
estate equal to that of each single
child she might have at the time
of her death. So if a freedwoman
left four children, a fifth part of
her property went to her patron,
but if she survived all her child-
ren, the patron on her decease
took her whole property.
§ 45. What has been said of
the patron applies to a son of the
patron, a grandson by a son, a
great-grandson by a grandson by
a son.
§ 46. Although a daughter of
a patron, a granddaughter by a
son, a great-granddaughter by a
grandson by a son have under
the statute of the Twelve Tables
identical rights with the patron,
the praetorian edict only calls
the male issue to the succession :
but the lex Papia gives a daughter
of the patron a contra - testa-
mentary or intestate claim against
an adoptive child, or a wife, or
a son's wife to a moiety of the
inheritance on account of the
privilege of being mother of three
children ; a daughter not so privi-
leged has no claim.
286 SVCCESSIO PER VNIVERSITATEM [in. §§ 39-54.
§ 47. Sed ut ex bonis libertae
testatae quattuor liberos ha-
bentis uirilis pars ei debeatur,
ne liberorum quidem iure con-
sequitur, ut quidam putant. sed
tarnen intestata liberta mortua
uerba legis Papiae faciunt, ut ei
uirilis pars debeatur. si uero
testamento facto mortua sit li-
berta, tale ius ei datur, quale
datum est contra tabulas testa-
ment! liberti, id est quale et
uirilis sexus patronorum liberi
contra tabulas testamenti liberti
habent; quamuis parum dili-
genter ea pars legis scripta sit.
§ 48. Ex his apparet entra-
nces heredes patronorum longe
remotos esse ab onmi eo iure,
quod uel in ^testatorum bonis
uel contra tabulas testamenti
patrono conpetit.
§ 49. Patronae olim ante
legem Papiam hoc solum ius
habebant in bonis libertorum,
quod etiam patronis ex lege xn
tabularum datum est. nee enim
ut contra tabulas testamenti
ingrati liberti uel ab intestate
contra filium adoptiuum uel
uxorem nurumue bonorum pos-
sessionem partis dimidiae pe-
terent, praetor similiter ut de
patrono liberisque eius curabat.
§ 50. Sed lex Papia duobus
liberis honoratfae ingenuae pa-
tronae, libertinae tribus, eadem
fere iura dedit, quae ex edicto
praetoris patroni habent ; trium
uero liberorum iure honoratae
§ 47. In the succession to a
testate freedwoman mother of
four children, a patron's daughter,
though mother of three children,
is not, as some think, entitled
to the portion of a child : but, if
the freedwoman die intestate, the
letter of the lex Papia gives her
the portion of a child ; if the
freedwoman die testate, the
patron's daughter has the same
title to contra-tabular possession
as she would have against the
will of a freedman, that is, as
the praetorian edict confers on a
patron and his sons in respect of
the property of a freedman, [viz.
a claim to half against all but
natural children] though this
portion of the law is carelessly
written.
§ 48. It is thus apparent that
the external heirs of a patron are
entirely excluded from the rights
which the law confers on the
patron himself, whether a freed-
man die intestate or it is a ques-
tion of the freedman's will being
set aside by the praetor in favour
of the patron.
§ 49. Before the lex Papia was
passed, patronesses had only the
same rights in the property of
their freed men as patrons enjoyed
under the statute of the Twelve
Tables : for neither did the praetor
intervene to give them a moiety
of the inheritance by contra-
tabular possession against a will
of an ungrateful freedman, nor
by making a grant of possession
against the intestate claim of an
adoptive child or a wife or a son's
wife, as he did in the case of the
patron and the patron's son.
§ 50. But subsequently by the
lex Papia two children entitle a
freeborn patroness, three children
a patroness who is a freedwoman,
to nearly the same rights as the
praetor's edict confers on a patron ;
in. §§ 39-54.] DESVCCESSIONELIBERTORVMCIVIVM 287
ingenuae patronae ea iura dedit,
quae per eandem legem patrono
data sunt; libertinae autem
patronae non idem iuris prae-
stitit.
§ 51. Quod autem ad libefti-
narum bona pertinet, siquidem
intestatae decesserint,mhilnoui
patronae liberis honoratae lex
Papia praestat. itaque si neque
ipsa patrona neque liberta capite
deminuta sit, ex lege xn tabu-
larum ad earn hereditas pertinet
et excluduntur libertae liberi ;
quod iuris est etiam si liberis
honorata non sit patrona ; num-
quam enim.sicut supra diximus,
feminae suum heredem habere
possunt. si uero uel huius uel
illius capitis deminutio inter-
ueniat, rursus liberi libertae
excludunt patronam, quia legi-
timo iure capitis deminutione
perempto euenit, ut liberi li-
bertae cognationis iure potiores
habeantitr.
§ 52. Cum autem testarnento
facto moritur liberta, ea quidem
patrona quae liberis honorata
non est nihil iuris habet contra
libertae testamentum ; ei uero
quae liberis honorata est hoc ius
tribuitur per legem Papiam,
quod habet ex edicto patronus
contra tabulas liberti.
§ 53. |Eadem lex patronae
filio liberis honorato /ere pa-
troni iura dedit ; sed in huius
persona etiam unius filii filiaeue
ius sufficit.
§ 54. Hactenus omnia iura
quasi per indicem tetigisse satis
est ; alioquin diligentior inter-
and it also provided that three
children entitle a freeborn pa-
troness to the same rights which
the statute itself conferred on a
patron: but the statute does not
grant these latter rights to a pa-
troness who is a freedwoman.
§ 51. As to the successions of
freedwomen who die intestate,
no new right is conferred on a
patroness through the title of
children by the lex Papia ; ac-
cordingly, if neither the patroness
nor the freedwoman has under-
gone a capitis deminutio, the law
of the Twelve Tables transmits
the inheritance to the patroness,
and excludes the freedwoman's
children, even when the patroness
is childless ; for a woman, as
before remarked, can never have
a self-successor: but if either of
them has undergone a capitis de-
minutio, the children of the freed-
woman exclude the patroness,
because her statutory title having
been obliterated by capitis de-
minutio, the children of the freed-
woman are admitted by right of
kinship in preference to her.
§ 52. When a freedwoman dies
testate, a patroness not entitled
by children has no right of con-
tra-tabular possession : but a pa-
troness entitled by children has
conferred upon her by the lex
Papia the same right to a moiety
by contra-tabular possession as
the praetorian edict confers on
the patron to the inheritance of
a freedman.
§ 53. By the same law a pa-
troness's son privileged by having
children has almost the rights of
a patron [patroness?], but in this
case one son or daughter is suffi-
cient to give him the privilege.
§ 54. This summary indication
of the rules of succession to freed-
men and freedwomen who are
288 SVCCESSIO PER VNIVERSITATEM [m. §§ 55-76.
pretatio propriis commentariis Roman citizens may suffice for
exposita est.
the present occasion : a more
detailed exposition is to be found
in my separate treatise on this
branch of law.
§ 54. Gaius wrote a treatise in fifteen books, Ad leges Juliam et
Papiam, from which there are thirty extracts in the Digest ; another
in ten books, Ad edictum urbicum ; and another in three books,
De manumissionibus : to any of which he may allude, but more
probably to the first.
§ 55. Sequitur ut de bonis
Latinorum libertinorum dis-
piciamus.
§ 56. Quae pars iuris ut mani-
festior fiat, admonendi sumus,
id quod alio loco diximus, eos
qui nuncLatiniluniani dicuntur
olim ex iure Quiritium seruos
fuisse, sed auxilio praetoris in
libertatis forma seruari solitos ;
unde etiam res eorum peculii
iure ad patronos pertinere solita
eet ; postea uero per legem
luniam eos omnes, quos praetor
in libertate tuebatur, liberos
esse coepisse et appellatos esse
Latinos lunianos : Latinos ideo,
quia lex eos liberos perinde esse
uoluit atque [si essent ciues Ro-
mani ingenui | qui ex urbeRoma
in Latinas colonias deducti La-
tini coloniarii esse coeperunt ;
lunianos ideo, quia per legem
luniam liberi facti sunt[,etiamsi
non essent ciues Romani]. legis
itaque luniae lator cum intel-
legeret futurum, ut ea fictione
res Latinorum defunctorum ad
patronos pertinere desinerent,
quia scilicet neque ut serui de-
cederent, ut possent iure peculii
res eorum ad patronos pertinere,
neque liberti Latini hominis
bona possent manumissionis
iure ad patronos pertinere, ne-
cessarium existimauit, ne bene-
§ 55. We proceed to the suc-
cessions of Latini Juniani.
§ 56. To understand this branch
of law we must recollect what has
been already mentioned (1 § 22),
that those who are called Latini
Juniani were originally slaves by
law of the Quirites, though main-
tained by the praetor's protection
in a condition of de facto freedom,
so that their possessions belonged
to their patrons by the title of
peculium. At a more recent
period, when the lex Junia was
enacted, those whom the praetor
had protected in de facto freedom
became legally free, and were
called Latini Juniani : Latini, be-
cause the law intended to assimi-
late their freedom to that of free-
born citizens of Rome who, on
quitting Rome for a Latin colony,
became Latin colonists ; Juniani,
because their liberty was due to
the lex Junia, although it did not
make them Roman citizens : and
as the author of the lex Junia fore-
saw that the effect of this fiction
of their being on the same footing
as Latini coloniarii would be that
the goods of deceased Latini
Juniani would cease to belong to
the patron, since not being slaves
at the time of their death, their
goods would not belong to the
patron by right of peculium, nor
could the goods of a Latin colonist
in. §§ 55-76.] DE BONIS LIBERTORVM
289
ficium istis datum in iniuriam
patronorum conuerteretur, ca-
uere [uoluit], ut bona eorum
proinde ad manumissores per-
tinerent, ac si lex lata non
essefc ; itaque iure quodammodo
peculii bona Latinorum ad
manumissores ea lege pertinent.
§ 57. Fnde accidit ut longe
differant ea iura, quae in bonis
Latinorum ex lege lunia con-
stituta sunt, ab his quae in
hereditate ciuium Romanorum
libertorum obseruantur.
§ 58. Nam ciuis Romani li-
berti hereditas ad extraneos
heredes patroni nullo modo
pertinet; ad filium autem pa-
troni nepotesque ex filio et
pronepotes ex nepote (filio
natoy prognatos omni modo
pertinet, etiamsi (a) parente
fuerint exheredati. Latinorum
autem bona tamquam peculia
seruorum etiam ad extraneos
heredes pertinent, et ad liberos
manumissoris exheredatos non
pertinent.
§ 59. Item ciuis Romam li-
\>erti hereditas ad duos pluresue
patronos aequaliter pertinet,
licet dispar in eo seruo domi-
nium habuerint; bona uero
Latinorum pro ea parte per-
tinent, pro qua parte quisque
eorum dominus fueri£.
§ 60. Item in hereditate ciuis
Romani libertipatronus alterius
patroni filium excludi£, et films
patroni alterius patroni nepo-
tem repellit ; bona autem Lati-
norum [et ad ipsum patronum]
j et ad alterius patroni heredem
u
devolve on him by title of manu-
mission ; he deemed it neces-
sary, to prevent the favour to
these freedmen from becoming
a wrong to the patron, to provide
that their goods should belong to
the manumitter in the same way
as if the law had not been enacted.
Consequently by that enactment
the property of Latini Juniani
belongs to their manumitters as
if it were by right of peculium.
§ 57. Accordingly there are
wide differences between the
title to the property of Latini
Juniani under the lex Junia
and the title to the inheritance
of freedmen who are Roman
citizens.
§ 58. When a freedman, who
is a Roman citizen, dies, an
external heir of the patron has
no claim to his inheritance, while
a son of the patron, a grand-
son by a son, a great-grandson
by a grandson by a son, have an
indefeasible claim even if disin-
herited by their parent ; whereas,
when a Latinus Junianus dies,
his property belongs to his
patron's external heir, like the
peculium of a slave, and does not
belong to the manumitter's
children who are disinherited.
§ 59. Thus the inheritance of
a freedman, who is a Roman
citizen, belongs to two or more
patrons in equal portions, in
however unequal proportions
they had been his proprietors;
whereas the goods of a Latinus
Junianus belong to his patrons
according to their shares in him
when he was a slave.
§ 60. Again, in the succession
to a freedman who is a Roman
citizen, one patron bars another
patron's son, and a son of one
patron bars another patron's
grandson ; whereas the goods of
a Latinus Junianus belong jointly
290 SVCCESSIO PER VNIVERSITATEM [m. §§ 55-76.
simul pertinent, pro qua parte
ad ipsum manumissorem per-
tinerent.
§ 61. Item si unius patroni
tres forte liberi sunt et alterius
unus. hereditas ciuis Romani
liberti in capita diuiditur, id
est tres fratres tres portiones
ferunt et unus quartam ; bona
uero Latinorum pro ea parte
ad successores pertinent, pro
qua parte ad ipsum manumis-
sorem pertinerent.
§ 62. Item si alter ex his
patronis suam partem in here-
ditate ciuis Romani liberti
spernat, uel ante moriatur
quam cernat, tota hereditas ad
alterum pertinet; bona autem
Latini pro parte de/icientis
patroni caduca fiunt et ad po-
pulum pertinent.
§ 63. Postea Lupo et Largo
consulibus senatus censuit, ut
bona Latinorum primum ad
eum pertinerent qui eos libe-
rasset ; deinde ad liberos eorum
non nominatim exheredatos, uti
quisque proximus esset ; tune
antique iure ad heredes eorum
qui liberassent pertinerent.
§ 64. Quo senatusconsulto
quidam (idy actum esse putant,
ut in bonis Latinorum eodem
iure utamur, quo utimur in
hereditate ciuium Romanorum
libertinorum. icZque maxime
Pegaso placuit. quae sententia
aperte falsa est. nam ciuis
Romani liberti hereditas num-
quam ad extraneos patroni
heredes pertinet, bona autem
both to a patron and another
patron's heir, the latter taking the
share which would have belonged
to the manumitter he represents.
§ 61. If one patron leave three
children, and another patron one,
the inheritance of a freedman
who was a Roman citizen is
divided by the number of indi-
viduals (in capita) ; that is to say,
every one takes an equal portion ;
whereas the goods of a Latinus
Junianus belong to those who suc-
ceed in the proportion in which
they would have belonged to the
manumitters they represent.
§ 62. If one patron renounce
his part in the inheritance of a
freedman who was a Roman
citizen, or die before formal
acceptance (cretio), the whole in-
heritance belongs to the other;
but the share of the property of
a Latinus Junianus which a
patron fails to take is caducous
and belongs to the people
(aerarium).
§ 63. At a later period, when
Lupus and Largus were consuls,
the senate decreed that the goods
of a Latinus Junianus should
belong in the first place to the
manumitter, in the next to such
issue of the latter as are not in-
dividually disinherited, in the
order of their proximity, and, in
default of these, by the ancient
law of devolution, to the heirs of
those manumitting them.
§ 64. The effect of this senatus-
consult is, according to some
authorities, that the goods of a
Latinus Junianus devolve in the
same way as the inheritance of a
freedman who was a Roman
citizen, and this was the doctrine
of Pegasus: but this opinion is
clearly erroneous, for the inheri-
tance of a freedman who is a
Roman citizen never belongs to
an external heir of his patron ;
in. §§ 55-76.] DE BONIS LIBERTORVM
291
Latinorum [etiam] ex hoc ipso
senatusconsulto non obstanti-
bus liberis manumissoris etiam
ad extraneos heredes pertinent,
item in hereditate ciuis Romani
liberti liberis manumissoris
nulla exheredatio nocet,m bonis
Latinorum nocere nominatim
factam exheredationem ipso
senatusconsulto significatur.
§ 64 a. Verius est ergo hoc
solum eo senatusconsulto actum
esse, ut manumissoris liberi, qui
nominatim exheredati non sint,
praeferantur extraneis heredi-
bus.
§ 65. Itaque emancipatus fi-
lius patroni praeteritus quam
uis contra tabulas testament!
parentis sui bonorum posses-
sionem non petierit, t&men ex-
traneis heredibus in bonis Lati-
norum potior habetur.
§ 66. Item filia ceterique sui
heredes licet iure ciuili inter
ceteros exheredati sint et ab
omni hereditate patris sui sum-
moueantur, tamen in bonis
Latinorum, nisi nominatim a
parente fuerint exherecfati,
potiores erunt extraneis here-
dibus.
§ 67. Item ad liberos, qui ab
hereditate parentis se absti-
nuerunt, nihilo minus 6ona
Latinorum pertinent; nam hi
quoque exheredati nullo modo
dici possunt, non magis quam
qui testamento silentio prae-
teriti sunt.
§ 68. Ex his omnibus satis
illud apparet, si is qui Lati-
U 3
whereas the goods of a Latinus
Junianus, by the express terms
of the senatusconsult, in default
of children of the manumitter
devolve on his external heir.
Again, in the case of the inheri-
tance of a freedman who was a
Roman citizen, the children of the
manumitter are not injuriously
affected by any form of disin-
heritance ; whereas Latini Ju-
niani, in respect of their goods,
are injured by individual dis-
inheritance according to the very
terms of the senatusconsult.
§ 64 a. The only true effect,
then, of the senatusconsult is,
that the manumitter's children
in ^ the absence of individual
disinheritance are preferred to
external heirs.
§ 65. Accordingly, an emanci-
pated son of the patron who is
passed over in silence by his
father, though he makes no
demand for contra-tabular pos-
session, is nevertheless preferred
to an external heir in respect of
the goods of a Latinus Junianus.
§ 66. Again, a daughter and
other self-successors who can be
disinherited at civil law in a
mass (inter ceteros) and thereby
effectively deprived of the inheri-
tance of their parent, in respect of
the goods of a Latinus Junianus,
unless they are individually
(nominatim) disinherited, have
priority over an external heir.
§ 67. Children, too, although
they have abstained from the in-
heritance of their parent, are en-
titled to the goods of his Latinus
Junianus in spite of their absten-
tion, because they cannot be said
to have been disinherited any
more than children who are passed
over by a testator in silence.
§ 68. From all these points it
is sufficiently apparent that he
292 SVCCESSIO PER VNIVERSITATEM [in. §§ 55-76.
num | fecerit, 1 —
— -sse ; hunc enim solum
bonis L&t'morum •
who makes a Latinus Junianus
in
(4 uersus in C legi nequeunt)
1 quaeritur, an exheredes
— I (5 uersus in C legi
nequeunt) 1 et libe 1
— I — constat
bona Latinorum
est ut
— ab
alteri 1.
§ 69. Item illud quoque con-
stare uidetur, si solos liberos ex |
disparibus partibus patronus
1 tant, ad eos per-
tinere, quia nullo interueniente
extraneo herede senatusconsulto
locus non est.
§ 70. Sed si cum liberis suis
etiam extraneum heredem pa-
tronus reliquerit, Cfoelius Sa-
binus ait tota bona pro uirilibus
partibus ad liberos defuncti
pertinere, quia cum extraneus
heres interuenit, non habet lex
lunia locum, sed senatuscon-
sultum. lauolenus autem ait
tantum earn partem ex senatus-
consulto liberos patroni pro ui-
rilibus partibus habituros esse,
quam extranei heredes ante
senatusconsultum lege lunia
habituri essent, reliquas uero
partes pro hereditariis partibus
ad eos pertinere.
§ 71. Item quaeritur, an hoc
senatusconsultum ad eos patroni
liberos pertineat, qui ex filia
nepteue procreantur, id est ut
nepos meus ex filia potior sit
in bonis Latini mei quam ex-
traneus heres. item (an) ad
maternos Latinos hoc senatus-
§ 69. This also seems to be
established, that if a patron has
instituted his children as his
sole heirs but in unequal por-
tions, the property of a Latin
belongs to them in the same
unequal proportions, because in
the absence of an external heir
the senatusconsult has no appli-
cation.
§ 70. If the children of the
patron are left joint heirs with a
stranger, Caelius Sabinus holds,
that the entire goods of a
Latinus Junianus devolve in
equal portions on the children,
because when an external heir
intervenes he is brought within
the senatusconsult instead of the
lex Junia. According to Javo-
lenus, only that part will devolve
under the senatusconsult in equal
portions on the children of the
patron, which, before the senatus-
consult was passed, the external
heir would have been entitled
to under the lex Junia, and the
residue will belong to them in
the proportion of their shares in
their father's inheritance.
§ 71. It is a further ques.tion,
whether this senatusconsult ex-
tends to descendants (liberi) of
the patron born of a daughter or
granddaughter of a patron, that
is whether in respect of the
goods of a Latinus Junianus a
grandson by a daughter will be
in. §§ 55-76.1 DE BONIS LIBERTORVM
« a J
293
consultum pertineat quaeritur,
id est ut in bonis Latini materni
potior sit patronae films quam
heres extraneus matris. Cassio
placuit utroque casu locum esse
senatusconsulto. sed huius sen-
tentiam plerique inprobant, quia
senatus de his liberis [patrona-
rum] nihil sentiat, qui aliara
familiam sequerentur. idque
ex eo apparet, quod nominatim
exheredatos summouet ; nam
uidetur de his sentire qui ex-
heredari a parente solent, si
heredes non instituantur ; ne-
que autem matri filium filiam-
ue, neque auo materno nepo-
tem neptemue, si eura eamue
heredem non instituat, exhere-
dare necesse est, siue de iure
ciuili quaeramus, siue de edicto
praetoris, quo praeteritis liberis
contra tabulas testamenti bono-
rum possessio promittitur.
§ 72. Aliquando tanien ciuis
Romanus libertus tamquam La-
tinus moritur, uelut si Latinus
saluo iure patroni ab imperatore
ius Quiritium consecutus fuerit.
nam, ut diuus Traianus consti-
tuit, si Latinus inuito uel igno-
rante patrono ius Quiritium ab
imperatore consecutus sit, [qui-
bus casibus] dum uiuit iste li-
bertus, ceteris ciuibus Romanis
libertis similis est et iustos li-
beros procreat, moritur autem
Latini iure, nee ei liberi eius
heredes esse possunt ; et in hoc
preferred to an external heir.
Again, it is a question whether
a Latinus Junianus belonging to
a mother is within the senatus-
consult, that is, whether in
respect of the goods of a Latinus
Junianus, manumitted by a
mother, preference is given to
the patroness' son over her ex-
ternal heir. Cassius held that
both cases are within the scope
of the senatusconsult ; but his
opinion is generally rejected on
the ground that the senate could
not contemplate the benefit of
patronesses' sons ; persons, that
is, in another civil family to
that of the manumitter ; and this
appears to be the true interpreta-
tion of the senatusconsult from
its making individual disinheri-
tance a bar ; for herein the senate
appears to contemplate those who
must be disinherited by their
parent if they are not instituted.
Now a mother need not disinherit
her child, nor a mother's father
a grandchild, in default of insti-
tution, whether we look to the
civil law or to that part of the
praetorian edict which promises
contra-tabular possession to child-
ren passed over by a testator in
silence.
§ 72. Sometimes a freedman,
who is a Roman citizen, dies as
a Latinus Junianus ; for instance,
a Latinus Junianus who has
obtained an imperial grant of
citizenship, reserving the rights
of his patron: for by a consti-
tution of the emperor Trajan a
Latinus Junianus who obtains
an imperial grant of citizenship
against the will or without the
knowledge of his patron re-
sembles during his lifetime other
freedmen who are Roman citi-
zens, and procreates lawful
children, but dies with the status
294 SVCCESSIO PEE VNIVERSITATEM [in. §§ 55-76.
tantum habet testament! fa-
ctionem, ut patronum heredem
instituat eique, si heres esse
noluerit, alium substituere
possit.
§ 73. Et quia hac constitu-
tione uidebatur effectum, ut ne
umquam isti homines tamquam
ciues Roman! morerentur, quam-
uis eo iure postea usi essent,
quo uel ex lege Aelia Sentia
uel ex senatusconsulto ciues
Romani essent, diuus Hadrianus
iniquitate rei motus auctor fuit
senatusconsulti /aciendi, ut qui
ignorante uel recusante patrono
ab iinperatore ius Quiritium
consecuti essent, si eo iure
postea usi essent, quo ex lege
Aelia Sentia uel ex senatus-
consulto, si Latini maws-issent,
ciuitatem Romanam conseque-
rentur, proinde ipsi haberentur
ac si lege Aelia Sentia uel
senatusconsulto ad ciuitatem
Romanam peruenissent.
§ 74. Eorum autem, quos lex
Aelia Sentia dediticiorum nu-
mero facit, bona modo quasi
ciuium Romanorum libe?7to-
rum, modo quasi Latinorum ad
patronos pertinent.
§ 75. Nam eorum bona qui,
si in aliquo uitio non essent,
manumissi ciues Romani futuri
essent, quasi ciuium Romanorum
patronis eadem lege tribuuntur.
non tamen hi habent etiam
testamenti factionem ; nam id
of a Latinus, so that his children
are not his heirs ; and has only
this amount of testamentary
capacity that he may institute
his patron heir, and name a sub-
stitute to him in case of his
renouncing the inheritance.
§ 73. But as the effect of this
constitution seemed to be, that
such a person could never die
as if he were a Eoman citizen,
even though he subsequently
acquired the title to which
the lex Aelia Sentia or the
senatusconsult (1 § 31) annexes
the right of Eoman citizenship,
the emperor Hadrian, to miti-
gate the harshness of the law,
caused to be passed a senatus-
consult, that a freedman, who
obtained from the emperor a
grant of citizenship without the
knowledge or contrary to the.
will of his patron, on subse-
quently acquiring the title to
which the lex Aelia Sentia or
the senatusconsult, if he had
remained a Latinus Junianus,
would have annexed the rights
of Eoman citizenship, should be
deemed to be in the same posi-
tion as if he had acquired
Eoman citizenship by the title
of the lex Aelia Sentia or the
senatusconsult.
§ 74. The property of those
who under the lex Aelia Sentia
are counted as if they were sur-
rendered enemies devolves on
their patrons sometimes as if
they were freedmen who had
Eoman citizenship, sometimes as
if they were Latini Juniani.
§ 75. For .the goods of those of
them who, but for some offence,
would have obtained on manu-
mission Eoman citizenship are
given by this statute to their
patrons like freedmen who be-
came Eoman citizens by the
in. §§ 55-76.] DE BONIS LIBERTORVM 295
plerisque placuit, nee inmerito : provision of the above-mentioned
nam incredibile uidebatur pes- statute ; but, according to the
siinae condicionis hominibus prevalent and better opinion,
uoluisse legis latorem testa- tne7 cannot make a will ; for it
menti faciendi ius concedere. see.ms incredible that the most
abject order of freedmen should
have been intended by the legis-
lator to enjoy the power of testa-
mentary disposition.
§ 76. Eorum uero bona qui, § 76. But the goods of those
si non in aliquo uitio essent, who, but for some offence, would
manumissi futuri Latini essent, have become on manumission
proinde tribuuntur patronis, ac Latini are assigned to their
si Latini decessissent. nee me patrons as if they were the goods
praeterit non satis in ea re legis of Latini, though, as I am aware,
Zatoremuoluntatemsuamuerbis the ^gislator has not expressed
his intention in this matter in
. , . ,
terms as unequivocal as might
be desired.
§ 59. It was an arbitrary rule of Roman jurisprudence that rights
of patronage were not divisible in unequal portions (placuit nullam
esse libertorum divisionem, Dig. 37, 14, 24), that is, that several
joint proprietors of a slave in unequal portions acquired by his
manumission equal rights as joint patrons against his succession.
§ 60. The rights of patrons were modelled on those of agnates,
and we know that only the nearest agnate was entitled to succeed.
Therefore on the decease of one of several joint patrons his rights
accrued to the remainder by survivorship. But the peculium of a
slave belongs to his co-proprietors in the ratio of their property, and
on the decease of one, his rights do not accrue to the co-proprietors,
but are transmitted to the representatives of the deceased.
§§ 63-71. Cf. Inst. Just. 3, 7, 4. The Sc. Largianum was passed
under the Emperor Claudius, A. D. 42.
The Sc. Largianum giving a right to the children of the patron,
in respect of the property of Latini Juniani deceased, put them all
on a footing of equality like manumitting joint proprietors, § 59,
but it only took effect when a stranger was instituted heir or co-heir ;
if then a patron left his whole inheritance to his children, but in
unequal portions, their rights to the succession of a Latinus Junianus
would be governed by the older law, and would be proportionate to
their shares in their father's succession.
§§ 74-76. Cf. 1, 25. Ulpian gives as a reason why Dediticius could
not make a will his want of citizenship both at Rome and in every
other state : Latinus Junianus, item is qui dediticiorum numero est,
testamentum facere non potest ; Latinus quidem quoniam nominatim
296 SVCCESSIO PEE VNIVERSITATEM [in. §§ 55-76.
lege Junia prohibitus est; is autem qui dediticioruin numero est.
quoniam nee quasi civis Komanus testari potest, cum sit peregrinus,
nee quasi peregrinus, quoniam nullius certae civitatis civis est, ut
secundum leges civitatis suae testetur, 20, 14. This requires some
explanation ; and the explanation may serve to illustrate all those
passages of Gaius, e.g. 1 § 92, where he alludes to the laws of
civitates peregrinae.
At the close of the republic, and during the first centuries of the
empire, all Italy, with the exception of Eome, was composed of a
number of townships ; each with its own territorial limits, and each
possessed of its own constitution, magistrates, jurisdiction, and, to a
certain extent, legislation. In the lex Julia municipalis, preserved
on the tabula Heracleensis, these townships are called Coloniae when
they had been founded as colonies from Kome, Municipia when they
traced their existence to some other origin. The provinces, though
originally very variously constituted, were gradually assimilated in
condition to Italy and its towns : so that finally the whole empire
was composed of municipalities, and almost all of its free inhabitants
were either citizens of Kome or of some local and inferior com-
munity.
The generic denomination of these communities, whether Italian
or Provincial, was Civitas or Kespublica. The term Municipium
was sometimes used in this generic sense ; but was more commonly
used in a specific sense as opposed to Colonia. Municipes, however,
is often used in the generic sense where we might have expected
Municipium ; as equivalent to Eespublica or Civitas. It is also
often used to signify generically, not a state or juristic person
(municipium), but its individual members ; i. e. as equivalent to
cives, in speaking of any town but Eome : as the word Civis, from
its habitual opposition to Latinus and Peregrinus, had acquired a
tendency to suggest civis Eomanus. The area belonging to each
town was called Eegio or Territorium, and included under one juris-
diction all the Vici within its geographical limits.
Citizenship (civitas, patria, origo) in any municipality was pro-
ducible by four causes : Municipem aut nativitas facit, aut manu-
missio, aut adoptio, Dig. Ad Municipalem et de Incolis, 50, 1, 1, pr.
Cives quidem origo, manumissio, adlectio, adoptio ; incolas vero . . .
domicilium facit, Cod. 10, 40, 7.
(i) Birth (origo, nativitas) was the commonest title ; and hence
the word origo is used as equivalent to civitas. Children born in
marriage had the civitas of their father ; those not so born of their
mother. Some states had the privilege that children born in lawful
marriage of parents belonging to different communities should have
the civitas of the mother in addition to that of the father.
in. §§55-76.] DE BONIS LIBERTOKVM 297
(2) Adoptio gave to the adopted child, in addition to his original
civitas, that of his adoptive father.
(3) Manumissio, when perfect, gave to the freedman the civitas of
his patronus.
(4) Adlectio, election by the governing body of a community,
admitted strangers to civitas.
It follows that a man might be a citizen of several states ; of one
by origo, another by adoptio, another by adlectio. This may seem
to be contradicted by Cicero : Duarum civitatum civis esse noster
jure civili nemo potest, Pro Balbo, 11, 28 : but Cicero is here speaking
of independent sovereign states ; not of the dependent states com-
posing the organism of the Eoman empire.
When Eoman citizenship had been granted to all Italy, and an
ordinance of Caracalla, subsequent to the time of Gaius, had ex-
tended it to all the Provinces, every member of any municipality
possessed at least a double citizenship: he was- citizen of Eome
as well as of the smaller municipality : Omnibus municipibus duas
esse censeo patrias, unam naturae, alteram civitatis . . . habuit
alteram loci patriam, alteram juris, Cicero, De legibus, 2, 2. Eoma
communis nostra patria est, Modestinus, Dig. 50, 1, 33.
The principal effects of citizenship in a municipality were three-
fold:
(1) Obligation to bear certain burdensome municipal offices
(munera) ;
(2) Subjection or obligation of submission to the municipal
magistrates and tribunals, including liability as defendant to be
sued before its courts (forum originis-) ;
(3) Subjection to municipal laws, including the determination of
a man's personal capacity — infancy, minority, majority, capacity of
disposition, &c. — by the laws of the community in which he had
civitas (lex originis).
In all these effects a man's Eoman citizenship was of slight
importance compared with his municipal citizenship. The burdens
(munera) of the metropolitan city were provided for by arrange-
ments peculiar to Eome. The liability of a defendant to be sued
before a Eoman forum was limited to the time when he happened
to be resident in Eome, and then was subject to many exceptions,
included under the general name of jus revocandi domum : and in
any case of collision between the laws relating to personal capacity,
the laws of Eome always yielded to those of the local patria or
father town (lex originis).
In most of the above consequences Domicil (domicilium, inco-
latus, domus) had an operation similar to civitas. Domicil is the
place which a man has voluntarily chosen for his residence, as
298 SVCCESSIO PER VNIVERSITATEM [m. §§ 55-76.
the central station of his fortunes, and the headquarters of his
dealings and dispositions: Incolas vero . . . domicilium facit. Et
in eodem loco singulos habere domicilium non ambigitur, ubi quis
larem rerumque ac fortunarum suarum summam constituit, unde
rursus non sit discessurus, si nihil avocet, unde cum profectus est,
peregrinari videtur, quo si rediit, peregrinari jam destitit, Cod. 10,
40, 7. * Home is identical with Domicil ; and Domicil is agreed to
be the place where a man has established his household gods and
the headquarters of his transactions and obligations : the place
which he will not leave except for a special purpose ; absence from
which makes him seem to be abroad, and return to which makes him
cease to be any longer away from home.' Sed de ea re constitutum
esse (respondit), earn domum unicuique nostrum debere existimari,
ubi quisque sedes et tabulas haberet suarumque rerum constitu-
tionem fecisset, Dig. 50, 16, 203. 'It is undisputed that a man's
home is the place where he is settled and has his counting-house
(account-books) and the basis of his operations (or, centre of gravita-
tion of his fortunes).' In exceptional cases a person's domicil might
be determined, not by choice, but by his circumstances : thus children
acquired the domicil of their parents, and soldiers were domiciled in
the place where they were stationed. It was possible for a person
to have more than one domicil, though this was a subject of
controversy.
A man was liable to munera of the city which he had chosen for
a domicil as well as of that where he had the rights and duties of
citizenship. Domicil, as well as Origo, constituted a man's general
forum ; that is, in any action in which a man was defendant, the
plaintiff had the election whether he would sue him at his forum
originis or forum domicilii. A party to an action can only be
governed by one Lex : and if he was citizen in any municipality,
he was, generally speaking, governed by lex originis ; if he was
nowhere citizen, his relations may be governed by lex domicilii.
The subversion of the Roman empire in the west abolished the
importance of the Municipalities ; and, with the exception of
Switzerland where it still prevails, the doctrine of Origo disappeared
from those countries which are still influenced by Roman juris-
prudence. Traces of the Roman doctrine of Domicilium still survive,
at least as to Forum and Lex, in the Private international law of
some states: what related to Munera shared the fate of the other
political institutions of the empire. Savigny, §§ 350-359.
We may observe that the reason assigned by Ulpian for the
incapacity of Dediticius to make a will, his want of patria, requires
explanation : for, if he had no patria, at least he might have domi-
cilium, though not in Rome or within a certain distance from it, and
in. §§ 55-76.] DE BONIS LIBERTORVM _ 299
we have seen that, in the absence of patria, a man's personal
capacity was to some extent determined by his domicilium. It may
be, however, that the equivalence of domicilium to patria did not
necessarily extend to testamentary capacity. The modern maxim :
Locus regit actum, 4 § 53, comm., the ability of even temporary
residence, as opposed to domicil, to give validity to the mere form
of a disposition if made in accordance with the law prevalent there,
is not a recognized principle of Koman law itself.
The third class of freedmanship (dediticia libertas) had long been
obsolete when it was formally abolished by Justinian, A.D. 530,
Cod. 7, 5.
The second class (latinitas), under which the freedman relapsed
into servitude at the moment of death, was also offensive to Roman
feelings in imperial times, and was formally abolished by Justinian,
the principal modes of creating latinitas being transformed into
modes of acquiring quiritary status or civitas Eomana, and the
remainder being declared inoperative, Cod. 7, 6.
The rules of succession to intestate freedmen of the first class,
the only class henceforth recognized, were immensely simplified by
Justinian. While he abolished the last remnants of the lex Papia,
and amongst them the rights which that law gave to the patron
against the heritage of Centenarius, or the freedman who died worth
100,000 sesterces, or what Justinian treated as equivalent, 100
aurei, he confined the rights of the patron to inheritances of that
amount, that is to say, he exempted from the claims of the patron,
contra-tabular or ab intestate, all estates left by a freedman below
the value of 100 aurei. Against such estates as remained liable,
moreover, he reduced the claims, contra-tabular or ab intestate, of
the patron from \ to \.
Patrons were protected against fraudulent alienations by the freed-
man in his lifetime in two ways. Alienations which reduced the
fortune of the freedman below the specified limit (made the freed-
man minorem centenario) were deemed to be in fraudem legis, and
were ipso jure null and void : alienations which, without making
the freedman minorem centenario, diminished the amount of the ^
to which the patron was entitled, were valid at law, but were
rescinded by the patron's action against the alienee. If the
freedman died testate, the patron employed against the alienee
the formula Fabiana ; if he died intestate, the formula Calvisiana.
These actions were analogous to the actio Pauliana, the creditors'
remedy in the case of alienations in fraudem creditorum. Fraudulent
alienations by manumission, whether in fraudem creditorum or in
fraudem patroni, were made null and void by the lex Aelia
Sentia, 1 § 37.
300 SVCCESSIO PER VNIVERSITATEM [in. §§ 55-76.
The patron's remedy by actio Fabiana and actio Calvisiana may
be compared with the remedy by Querela inofficiosae donationis ;
for the rights of a patron against the inheritance of the freedman
were somewhat analogous to the rights of certain very near relations
of the testator to his inheritance, unless a certain portion (debita,
legitima portio) of the inheritance was left them in his will, and by
the Querela inofficiosae donationis any gift he made which violated
his duty to such relations in this respect could be set aside. While
the will of the freedman could be upset by centra-tabulation (by
interdictum quorum bonorum or petitio hereditatis possessoria), the
testator's near relatives were allowed the Querela inofficiosi testamenti,
with a fictitious allegation of the testator's insanity. The amount held
sufficient to satisfy the rights of the two classes of claimants differed :
while the patron was entitled to ^, or, in later times, § of the inheri-
tance, a will was set aside for breach of family respect (pietas) unless
a ^ of what would have been the querelant's share in the event of in-
testacy was left him. In both cases the will of the testator, whether
libertus or ingenuus, might be allowed to stand, so far as was consistent
with the claims of the Querelant or Contra-tabulant ; but while
Contra-tabulation necessarily produced a violation of the rule, nemo
pro parte testatus, pro parte intestatus, decedere potest, the Querela
only produced it occasionally, as it often caused a complete rescission
of the will, or total intestacy. Praeteriti liberi, i.e. neither instituti
heredes nor exheredati, could also, if the will was not on this
account entirely void, contra-tabulate like the patron : but the
patron's ground of contra-tabulation, like the near relation's ground
of querela, was a material wrong ; whereas preterition of liberi was
treated rather as an informality.
The rights of the patron against the freedman's estate were not
only interesting to the freeborn Roman in his possible character of
a patron, but also in respect of the manumission of children : for an
emancipating parent (parens manumissor) had the same claims
against the estate left by the emancipated child as the manumitter
of a slave had against the estate left by the freedman, i. e. a claim
originally to a moiety and subsequently to a third of the succession,
either contra-tabular or ab intestate. He, however, could not bring
actio Fabiana or Calvisiana to defeat dolose alienations made in the
lifetime of the emancipated child.
In later times the multiplication of legally protected Peculia,
castrense, quasi-castrense, &c., made emancipation very much less
a matter of loss to the emancipating parent, and proportionally
deprived of its strength his claim to the succession of his child.
Hence we find that Novella 115, which recast the rules relating
to inofficiositas, and Novella 118, which reformed intestate law,
in. §§ 77-81.] BONORVM VENDITIO
301
abolished both the contra-tabular and the ab intestato rights of
parens manumissor. Adolf Schmidt, Das Pflichttheilsrecht des
Patronus und des Parens manumissor.
§ 77. Videamus autem et de
ea successione quae nobis ex
emptione bonorum conpetit.
§ 78. Bona autem ueneunt
aut uiuorum aut mortuorum :
uiuorum ueluti eorum qui
fraudationis causa latitant nee
absentee defenduntur ; item
eorum qui ex lege lulia bonis
cedunt ; item iudicatorum post
tempus quod eis partim lege
xii tabularum partim edicto
praetoris ad expediendam pe-
cuniam tribuitur. mortuorum
bona ueneunt ueluti eorum,
quibus certum est neque here-
des neque bonorum possessores
neque ullum alium iustum suc-
cessorem existere.
§ 79. Siquidem uiui bona
ueneant, iubet ea praetor per
dies continues xxx possideri et
proscribi ; si uero mortui, per
dies xv. postea iubet conuenire
creditores et ex eo numero
magistrum creari, id est cum
per quern bona ueneant. itaque
si uiui bona ueneant, in diebus
(x bonorumy uenditionem fieri
iubet, si mortui, in dimidio.
diebus itaque uiui bona xxxx,
mortui uero xx emptori addici
iubet. quare autem tardius
uiuentium bonorum uenditio-
nem conpleri iubet, ilia ratio
est, quia de uiuis curandum
erat, ne facile bonorum uendi-
tiones paterentur.
§ 77. We next proceed to suc-
cession of a vendee arising from
the purchase of a debtor's entire
property.
§ 78. The entire property of a
debtor may be sold either in his
lifetime or after his death. It is
sold in his lifetime when, for
instance, he defrauds his creditors
by absconding, and is absent
and undefended, or when he
avails himself of the lex Julia
and makes a voluntary surrender
of his estate, or when, after
judgment recovered against him,
he has suffered the term to ex-
pire that is prescribed, partly by
the Twelve Tables, partly by the
edict of the praetor, for the
satisfaction of a judgment debt.
A debtor's estate is sold after his
death when it is certain that he
has left neither an heir, nor a
praetorian representative, nor any
other lawful successor.
§ 79. If the bankrupt whose
estate is to be sold is alive, an
order issues from the praetor,
and his estate is possessed and
advertised for sale for thirty con-
tinuous days ; if the debtor is
dead, it is possessed and adver-
tised for fifteen days. After this
delay a second order issues from
the praetor, directing the credi-
tors to hold a meeting and elect
out of their number a manager,
by whom the estate may be sold.
And after the expiration of the
ten days next following, if the
debtor is alive, or of five if he
is dead, a third order issues from
the praetor, under which the sale
of the property is held. Thus
after the expiration of forty days
if the debtor is alive, after the ex-
piration of twenty if he is dead,
302 SVCCESSIO PER VNIVERSITATEM [in. §§ 77-81.
§ 80. Neque autem bonorum
possessorum neque bonorum
emptorum res pleno iure fiunt,
sed in bonis efficiuntur,- ex iure
Quiritmm autem ita demum
adquiruntur, si usuceperunt.
interdum quidem bonorum
emptoribus ne u|sus quidem
capio contingit, ueluti si —
bonorum emptor 1
§ 81. Item quae debi£a sunt
' 1 aut ipse debuit, neque
bonorum possessor neque \ bo-
norum emptor ipso iure debe£
aut ipsis debentur,
nibus rebus
— de om-
in
sequenti commentario pro|po-
nemus.
his universal estate is transferred
by the creditors under the
praetor's order to the purchaser.
The longer delay prescribed for
the sale of the estate of a living
debtor is founded on the greater
consideration due to the living
than to the dead, and is designed
to protect a living debtor from
having his property sold too
easily.
§ 80. Neither a praetorian suc-
cessor nor a purchaser of a
debtor's entire property acquires
plenary, but only bonitarian,
ownership. Quiritarian owner-
ship is only acquired by usu-
capion, though sometimes a
purchaser of a debtor's entire
property cannot even acquire by
usucapion (for instance, when a
peregrinus is bonorum emptor).
§ 81. Debts owed to or by the
person from whom the property
is derived are not owed to or
by the praetorian successor or
purchaser of a debtor's entire
property, but are recoverable by
fictitious forms of action, which
will be explained hereafter
[4 § 34].
§ 77. Missio in possession em and the subsequent bonorum venditio
bear a sort of general resemblance to the adjudication of bankruptcy
and the sale of the debtor's property by the trustee in bankruptcy of
English law, though in the latter system there is this among other
differences, that the sale is not in the hands of the creditors them-
selves, but of a trustee appointed by the court and acting under its
control.
In order to form a clear conception of this branch of the law, it
is necessary to distinguish an ordinary judgment execution in a per-
sonal action, that is to say, the enforcement by the power of the
state of a judgment debt against a debtor who omits to satisfy the
judgment by voluntary payment, from bankruptcy, which is the
process when all the property and liabilities of the debtor in default
are brought into adjudication. The English process in an ordinary
execution is either a writ of fieri facias, commanding the sheriff to
satisfy the debt by seizure and sale of the personal goods of the
in. §§ 77-81.] BONORVM VENDITIO 303
debtor ; or a writ of levari facias, now disused, directing him to levy
the debt out of the personal goods of the debtor, and the rents and
profits of his land ; or a writ of elegit, commanding him to deliver
the debtor's goods to the creditor at an appraisement, or to put the
creditor in possession of the debtor's land, to hold until out of the
rents and profits thereof the debt is levied j or formerly, before im-
prisonment for debt was abolished, a writ of capias ad satisfaciendum,
commanding him to imprison the body of the debtor until satis-
faction was made for the debt. After a man's body was taken in
execution, no other process could be sued out against his lands or
his goods, and after his lands were seized by elegit, his body could
not be taken, but if part only of the debt was levied on a fieri facias,
the creditor might have a capias ad satisfaciendum for the residue.
So that body and goods might be taken in execution, or land and
goods, but not both body and land. None of these remedies, we
may observe, includes the sale of the debtor's land. In the law of
bankruptcy, on the contrary, which has grown up in comparatively
modern times, the whole real as well as personal estate of the debtor
is transferred to the creditors' trustee, to be sold or otherwise dis-
posed of, for the benefit of the creditors ; but the trustee, as we
have seen, fulfils a public function, and is not a mere agent of the
creditors.
It is to be noticed that ordinary execution for debt and bankruptcy
are not distinctly separated from one another by Gaius, all judgment
debtors alike being liable to bonorum venditio, though competing
creditors are associated together in the realization of the debtor's
estate.
In the early law the only general form of execution was personal
(manus injectio), and when the praetor established a form of real
execution it operated, whether at the instance of one, or of several
creditors, as a transfer of the debtor's entire property to the vendee.
But in course of time, owing to the inconvenience of this kind of
execution in the case of single creditors, the practice of granting execu
tion by which portions only of a debtor's property could be seized
was adopted by the praetor and developed by imperial legislation.
This was called pignoris capio, which is not to be confounded
with the legis actio per pignoris capionem, of which Gaius subse-
quently gives an account, 4 § 26. A portion of the debtor's estate
was thus seized, not by the plaintiff, as in the earlier procedure, but
by public officers (the officiates, viatores, apparitores, executores of
the magistrate), and after being detained two months to enforce
payment by way of pledge, was sold in satisfaction of the debt.
Movables were to be seized and sold in the first instance, but, if
these were insufficient, lands might be seized and sold, Dig. 42, 1, 15.
304 SVCCESSIO PER VNIVERSITATEM [in. §§ 77-81.
If a purchaser could not be found, the property might be delivered
to the creditor at an appraisement. In pignoris capio, however, there
was only a singular succession to the debtor's property, which was
taken in execution, there was no transfer of his juris universitas.
In order to understand the proceedings in bonorum emptio, or
execution against the entire property of an insolvent debtor, the
principal mode of execution at the time when Gaius wrote, we must
study the earlier mode of execution by manus injectio, or process
against the body of the debtor, which was one of the old legis actiones
regulated by the Twelve Tables, 4 §§ 21-25, and which was the
model on which proceedings in missio in possessionem, or process
against an insolvent's estate, were regulated by subsequent prae-
torian legislation. These proceedings are known to us by the state-
ments of Aulus Gellius, who has given us the very terms of the
Twelve Tables, 20, 1. 'The following are the expressions of the law
(Table III): Admitted debts and judgment debts shall be satisfied
within a lawful term of thirty days. When these are elapsed let the
creditor apprehend the debtor and take him before the magistrate.
If he does not satisfy the judgment, and if no one takes upon
himself the cause before the magistrates, binding himself to defend
an action for the debt (eo in jure vindicit), let the creditor carry
him away (secum ducito), and confine him in stocks or fetters of
not less than 15 pounds weight. If the prisoner wishes, he may live
on his own. If he does not, the creditor shall give him pounds of
corn each day, or more if he likes.' Gellius proceeds to tell us that
' during a subsequent interval the debtor might agree with his
adversary (erat autem jus interea paciscendi), but in default of an
agreement was detained in chains for sixty days. During this
period, on three continuous ninth or market-days he was taken
before the praetor in the comitium, where the amount of the
judgment debt was proclaimed (which would give his friends an
opportunity of ransoming him). On the third market-day he was
put to death, or sold into slavery beyond the Tiber. . . . On the third
market-day, say the Twelve Tables, the creditors may cut their
portions of his body, and no creditor who cuts too little or too much
shall be therefore called to account ' (cf. Gell. 1. c. 48-52 dissectum
esse antiquitus neminem equidem legi neque audivi. For various
explanations of this curious passage cf. Roby, Private Law, 2, p. 424).
The excessive cruelty of creditors to their debtor bondsmen, one
of the chief grievances of the plebeians, was restrained by the Lex
Poetelia (313 B.C.). This law probably prevented them being sold
as slaves beyond the Tiber. But it left untouched personal execu-
tion itself, imprisonment for debt remaining in force throughout the
history of Roman law. But though personal execution was applicable
in. §§77-81.] BONORVM VENDITIO 305
to all judicati, the lex Poetelia abolished it for nexum, Bethmann-
Hollweg, Eom. Civ. Proc. § 112.
The assignment (addictio) of the insolvent borrower reduced him
to a state of partial servitude. But the Eoman lawyers distinguished
between partial slavery (servire) and complete slavery (servum esse),
Quintilian, 7, 3. For instance, the addictus retained his praenomen,
nomen, cognomen, tribe, could by payment of his debt recover his
liberty at any time without the consent of the creditor, and on
recovery of his liberty was not libertinus but ingenuus. As, then,
addictio did not reduce a freeman to slavery, it did not operate
a degradation of status (capitis minutio).
Insolvency, however, deeply affected another branch of status,
namely, civitas, although even here, as it only partially destroyed
the privileges of civitas, it was not considered to operate a capitis
minutio. Civitas, as we have seen, consisted of two portions,
certain political or public rights, jus suffragii and jus honorum, and
certain civil or private rights, collectively denominated commercium
and connubium. The political half of civitas was destroyed by
insolvency, which deprived a man of his electoral powers and his
capacity for office, and reduced him to the condition of aerarius ;
and even the civil half was seriously impaired, and principally in
respect of commercium. Of the aggregate of capacities called
commercium the privilege forfeited by insolvency was the capacity
of appointing or being appointed procurator, Inst. 4, 13, 11. By
being disabled from appointing a procurator a man might be
seriously hampered in his commercial proceedings, as he would
be unable to cede a right of action ; by being disqualified for acting
as procurator he would be unable to acquire by cession a right of
action, and would be unable to sue for a penalty as an informer in
a popularis actio, 4 § 82, comm., for the prosecutor in such an action
was considered to be the procurator of the people. The various
privileges enjoyed by a citizen of untarnished credit, and liable to
be forfeited by insolvency or otherwise, were called his existimatio,
and the disabilities attaching to loss of existimatio were summed up
in the word ' infamia ' or ' ignominia.'
The early Civil law allowed, as we have seen, the body of the
insolvent debtor to be pursued, but provided no direct process
against his property. This want, which would be the more felt as
Koman commerce extended, was at length supplied by the Praetor.
In close imitation of this execution against the body, a process
of execution against the property of an insolvent was introduced
by a praetor named Publius Kutilius, about a century before the
Christian era, 4 § 35. It may be assumed from the parallelism of
these proceedings that the interval of thirty days which was required
WHITTUCK
306 SVCCESSIO PER VNIVERSITATEM [in. §§77-81.
to elapse between the first seizure and the decree authorizing the
election of a magister was derived from the thirty days' interval
allowed the judgment debtor before manus injectio.
The process was begun by missio in possessionem, whereby the
praetor gave persons, who had a claim to property, provisional pos-
session of it.
Some of the details of the proceedings in a missio in possessionem
which are omitted by Gaius may be supplied from Theophilus.
Before the final transfer of the debtor's estate by the creditors
under the order of the magistrate (addictio) three decrees of the
praetor were necessary : —
(1) A decree authorizing the seizure of the debtor's estate and its
advertisement for sale (proscriptio). Theophilus gives the form of
this advertisement : 6 8flva ^peowmj? r^iertpos imdp^v^ (Is alriav (VfTTf(Tf
8icnrpd<T€u>s, ^JP-f'^j KpfSiraipfs ovres, rrjv TOVTOV SuiTriTrpaaKo/iei/ Trtptovcrlav.
tow/™)? 6 Pov\6fj.evos Trpoo-tVco, 3, 12. ' So-and-so, our debtor, is bankrupt ;
we, his creditors, are about to sell his estate ; whoever wishes to
purchase is invited to attend.' This advertisement was affixed to the
Columna Maenia, which was in the forum on the Puteal near the
Career. Pliny, N. H. 7, 60. In the old system of manus injectio,
the judgment debtor (judicatus), after the expiration of the thirty
dies justi, was no longer allowed to defend an action in person, but
might, as we see by the above-quoted fragment of the Twelve Tables,
be defended by a vindex. In the formulary system, the equivalent
of the vindex was satisdatio judicatum solvi, security with two
sureties for the payment of the judgment to be recovered, and the
judgment recoverable in an actio judicati was for twice the amount
of the disputed judgment debt, 4 §§ 9, 102. Supposing, however,
the missio in possessionem was not founded on a previous judgment,
but on the debtor's absconding or keeping house, then the period at
which he was disabled from defending an action, unless he gave
security (judicatum solvi), was the expiration of thirty days after
his estate had been seized and advertised for sale, Cicero, Pro Flacco.
Before the thirty days have expired, the debtor is admitted to
defensio without satisdatio judicatum solvi.
(2) After the possession and proscription of the estate the bank-
rupt is infamis, and cannot defend without satisdatio judicatum
solvi ; and a second decree of the praetor empowered the creditors
to hold a meeting and elect a magister to manage the sale, corre-
sponding in this respect to the creditor's assignee, or, at the present
day, the creditor's trustee of English law.
(3) After a certain period (ten or five days), a third decree
authorized the publication of the conditions of sale, which were
appended to the original advertisement.
in. §§77-81.] BONORVM VENDITIO 307
A period of forty or twenty days having thus been completed
from the first missio in possessionem, the sale took place by public
auction, the universitas juris of the debtor being transferred to the
bidder who offered the creditors the highest dividend, that is, the
greatest amount in the pound on their respective claims. As we see
by the text, § 80, the purchaser became bonitary, not quiritary,
owner of the insolvent's property, and he could only sue or be sued
by actiones ficticiae or utiles, not by actiones directae, 4 § 35.
The principal acts or defaults, which entitled a Koman creditor
to bonorum venditio, may be compared with those which entitle
an English creditor to petition for an adjudication in bankruptcy,
i. e. to the so-called acts of bankruptcy of English jurisprudence.
(1) As manus injectio might be founded on a previous judgment
or an admission of debt (res judicata or aes confessum), and missio
in possessionem might be granted against judicatus who makes
default, so in English law non-payment of an admitted or a judgment
debt after service of a debtor's summons is an act of bankruptcy,
and instead of suing out a writ of execution the creditor may petition
for adjudication of bankruptcy.
(2) When there is no previous judgment or admission of debt,
a debtor who absconds or secretes himself, with intent to defraud his
creditors, commits an act of bankruptcy in both systems of law.
In English law, for instance, if a debtor makes an appointment
with a creditor to meet at the debtor's place of business, and avoids
the meeting with the intention of delaying the creditor ; or if he
withdraws from his usual counting-house to a room upstairs, to
avoid the rightful and personal solicitation of his creditors for pay-
ment, he commits an act of bankruptcy. So in Roman law : Praetor
ait: In bona ejus qui judicio sistendi causa fidejussorem dedit, si
neque potestatem sui faciet neque defendetur, iri jubebo, Dig. 42,
4, 2. ' The praetor says in the edict : If a man enter into a bond
with suretyship to appear at a trial, and neither appears in person
nor by procurator, I will permit the plaintiff to seize his goods.'
Again : Praetor ait : Qui fraudationis causa latitabit, si boni viri
arbitratu non defendetur, ejus bona possideri vendique jubebo, Dig.
42, 7, 1. 'The praetor says in the edict : If a man secrete himself
with intent to defraud his creditors, and is not defended by a pro-
curator who gives security approved by an arbitrator, I will order
his property to be seized and sold.' Cf. § 78.
There is no adjudication of bankruptcy against a deceased debtor
in English law, but there may be a liquidation of his property as in
Roman law ; there are special rules for the administration of pro-
perty in such cases, creditors, in default of other administrators,
being entitled to take out letters of administration against the estate
X 2
308 SVCCESSIO PER VNIVERSITATEM [in. §§ 77-81.
of a deceased debtor. As the Koman heir was personally liable for
the debts of the deceased, he might by succeeding to an insolvent
inheritance become himself insolvent, which is of course not possible
in succession by English law.
Cessio bonorum was introduced by a lex Julia, § 78, enacted
either by Julius or Augustus Caesar, and if by the latter, in
imitation of a measure of the former which he himself has recorded.
In the year 48 B. c. when Caesar was consul, credit having collapsed
in consequence of the civil war, debtors being generally insolvent,
and money having disappeared, Caesar allowed them to discharge
their obligations by the transfer of their estates, movable and
immovable, to their creditors, at the value, appraised by arbitrators,
which they would have borne before the commencement of the war,
De Bello Civili, 3, 1. Cessio bonorum conferred three benefits on
the debtor : exemption from arrest and imprisonment, exemption
from infamy, exemption of his after-acquired property from liability
beyond a certain amount.
After the abolition of the legis actiones and the introduction
of execution against the estate, execution against the body of the
debtor still remained as one of the remedies of the civil code. The
insolvent debtor was incarcerated and compelled to labour for the
benefit of the creditor, although he could no longer be sold as a slave.
From this personal execution a debtor was exempted by cessio
bonorum. In eo tantummodo hoc beneficium eis prodest ne judicati
detrahantur in carcerem, Cod. 7, 71, 1. 'The principal benefit of
bonorum cessio is, that it exempts the insolvent from incarceration.'
From loss of existimatio the insolvent was exempted by bonorum
cessio. Debitores qui bonis cesserint licet ex ea causa bona eorum
venierint, infames non fiunt, Cod. 2, 12, 11. 'The surrender of a
debtor's estate, though followed by a sale of all his property, does
not involve infamy.'
Proceedings in bankruptcy or insolvency, in modern days, may
be looked upon in two lights : either as a mode of execution, that is,
as assisting the creditors to recover as much as may be of their
rightful claims, or as a mode of liberation, that is, as a relief of an
unfortunate debtor, releasing him of his debts without payment,
and enabling him to 'begin the world again' without the over-
whelming pressure of his past obligations. By the present English
law, with the approval of the Court, a bankrupt may be discharged
of his obligations by payment of a dividend of ten shillings in the
pound, or, failing this, by a resolution of his creditors that his
bankruptcy has arisen from circumstances for which he cannot justly
be held responsible, and an expression of their desire that he should
receive an order of discharge. Eoman law only admitted any limi-
in. §§ 77-81.] BONORVM VENDITIO 309
tation of the debtor's liability in very exceptional cases, e.g. in the
case of a slave instituted heres necessarius, 2 § 155, in order to save
the credit of an insolvent testator. After once becoming heir to
the insolvent inheritance, whether he wished it or not, such a person
was not liable to further molestation. (Of. the restriction of liability
allowed to an heir by the beneficium inventarii of Justinian.) But
the after-acquired property of other insolvents remained liable to
successive sales until plenary satisfaction of their debts had been
made. Accordingly, bankruptcy is not enumerated, § 168, as one
of the modes of extinguishing obligation.
To encourage the bankrupt, however, to make a bonorum cessio,
in order that as much as possible might be saved from the wreck
of his fortunes for the benefit of his creditors, bonorum cessio not
only discharged him, as we have seen, from personal execution, but
discharged from liability such portion of his after-acquired property
as was necessary for his subsistence. Qui bonis cesserint nisi
solidum creditor receperit non sunt liberati, Cod. 7, 71, 1. Is qui
bonis cesserit, si quid postea acquisierit, in quantum facere potest
convenitur, Dig. 42, 3, 4. See 4 § 43, comm.
The property of a debtor who made a voluntary assignment was sold
by the creditors in the same way as when it was taken compulsorily.
Bonorum sectio differed from bonorum venditio in that it vested
quiritary, and not merely bonitary, property in the purchaser. Some
criminal condemnations involved confiscation, and the sale of the
criminal's estate (also of booty taken in war) in this way was con-
ducted not by a magister but by a quaestor of the treasury, who sold
under the spear, the symbol of quiritary dominion. Sectio bonorum
transferred the juris universitas of the criminal. It is alluded to,
§ 154, 4 § 146. Bonorum cessio, as we are expressly informed, Cod.
7, 71, 4, only gave the creditors a power of sale (bonorum venditio)
and did not invest them with any right of ownership.
In the last period of Koman law, such as we find in the time of
Justinian, venditio bonorum was superseded by distractio bonorum,
which involved no transfer of the juris universitas. A curator was
appointed by the praetor, and instead of selling the active and
passive universality of the insolvent's estate to a purchaser who
became liable to the insolvent's creditors, merely sold the active
residue of his estate in detail. Justinian attributes this change to
the abolition of the formulary procedure and generalization of cog-
nitio extraordinaria : Theophilus, to the abolition of the conventus,
assizes, sessions, or brief law terms of the provinces, and the erec-
tion of permanent provincial tribunals. The continuance of venditio
bonorum would have been incompatible with these changes, because
they depended on the principle that the entire administration of
310 SVCCESSIO PER VNIVERSITATEM [in. §§77-81.
civil procedure should be in the hands of imperial officials. It was
indeed by the extraordinaria and not by the ordinaria cognitio of the
praetor that levying execution by pignoris capio was first instituted.
Under the empire ordinary execution (Pignoris capio) was differen-
tiated from bankruptcy proceedings (Missio in bona). In Pignoris
capio the court (not the creditor) was put in possession, and the
sale took place in two months, unless the debtor paid before that
period. In real actions the res was delivered by the court to the
plaintiff ; i. e. the court had acquired a new faculty of transmuting
property from the defendant to the plaintiff. Only fiscal debtors
and insolvents were now subject to loss of freedom, and this was
no longer incarceration, but only custodia militaris, surveillance by
a soldier. Pignoris capio (special Eeal exception) was followed by
a sale by auction (licitatio, subhastatio) conducted by apparitores
Praetoris. Whereas under the early law creditors obtained Missio
in bona before proof, and had subsequently to prove their claims
against the universal successor (bonorum emptor) ; under the latest
law only those creditors who had proved obtained Missio in bona,
and then received their percentage not from the universal successor
but at the hands of the judex, immediately from the Massa, the
proceeds of the sales by a curator ; privileged creditors receiving
first their whole claims, unprivileged equal percentages (aequalis
portio pro rata debiti quantitate). Two years were allowed to
creditors in the same province, four years to creditors in different
provinces to prove their claims ; after which they retained their
claims against the debtor, but not against the possessing creditors.
Bethmann-Hollweg, §§ 158-160.
The following observations may serve to supplement the brief
remarks of Gaius on the subject of Insolvency:
Bankruptcy proceedings are a form of execution, and therefore
belong, not to substantive law, but to the law of Procedure. This
branch of law, however, as we have already noticed, has some elements
which are not purely formal, but material, and as such are rightly
admitted to a treatise on substantive law. Insolvency is placed
by Gaius in this part of his treatise, because in his day insolvency
occasioned a transfer of a universitas, which was a succession to an
entire property.
Proceedings in Insolvency may be divided into two portions, of
which one is (A) preparatory, and the other (B) final.
(A) The preparatory portion includes the Proof of their debts by
the several creditors : the collection of the assets or formation of the
Massa ; and its sale. The collection of the assets includes, on the
one hand, the recovery back of property that has been aliened in
fraudem creditorum ; and, on the other, the elimination or separa-
in. §§ 77-81.] BONORVM VENDITIO 311
tion from the mass of such things found in the possession of the
insolvent as were not really his property but the property of other
persons called Separatists.
Separatist claimants are those claimants
(1) Who can sue for a thing by any form of Keal action, whether
a rei vindicatio, or actio Publiciana (rei vindicatio utilis), or here-
ditatis petitio, or actio confessoria brought to recover some Personal
servitude like ususfructus. An actio in rem confessoria to enforce
a Keal servitude is obviously not an interest of a nature to give
a right of Separation. Those who had a pignus or hypotheca were
also ranked by the Komans among the Separatists : in modern law
they take their place among the creditors proper or concurrent, who
have priority.
(2) Or Separatists are claimants who have a Personal action
whereby they can have a claim against the insolvent in respect of
some specific thing in his hands ; such as actio commodati, depositi,
locati, mandati, condictio furtiva, interdictum unde vi, actio de
pauperie, or actio quod metus causa.
(B) The final stage is the distribution of the realized proceeds of
the present assets among the concurrent creditors according to their
classification. The execution does not effect a discharge of the
insolvent, and therefore subsequent assets will be subject to a
subsequent distribution.
In modern Eoman law creditors have been sometimes marshalled
in five classes. (For Roman law itself on this subject, cf. Roby, 2,
pp. 436, 437.)
1. Creditors with an Absolute privilege, viz. creditors for the funeral
expenses of the insolvent. Modern law adds Servants who are creditors
for their wages, and the Fiscus which has a claim for arrears.
2. Privileged Hypothecary creditors, i. e. the Fiscus, the wife for
her dower, and any creditor who lent money for the purchase or
conservation of the subject of hypothecation, e. g. to buy the land
or build the house, or build, or buy, or equip the ship, that is
hypothecated.
3. Simple hypothecary creditors, who have priority according to
the date of their mortgage.
4. Privileged chirographary (merely personal) creditors, or credi-
tors unprotected by mortgage. Privileged are creditors who lent
money for the repair of a house ; for the purchase, construction, or
equipment of a ship ; or depositors of money, without interest, in
the hands of the insolvent as banker (argentarius, mensularius).
5. Unprivileged personal creditors, Savigny, § 374 ; Vangerow,
§ 593; cf. Windscheid, Pandekten, 2 § 271; Dernburg, Pandekten,
3 § 56.
312 SVCCESSIO PER VNIVERSITATEM [in. §§ 82-84.
§ 82. Sunt autem etiam al-
terius generis successiones, quae
neque lege xn tabularum neque
praetoris edicto, sed eo iure
(quod) consewsu receptum est
introductae sunt. Inst. 3, 10.
§ 83. Etenim cum pater fami-
lias se in adoptionem dedit
mulieme in manum conuenit,
omnes eius res incorporales et
corporales quaeque ei debitae
sunt, patri adoptiuo coemptio-
natoriue adquiruntur, exceptis
his quae per capitis deminu-
tionem pereunt, quales sunt
ususfructus, operarum obligatio
Ubertinorum quae per iusiu-
randum contracta est, et lites
contestatae legitimo iudicio.
Inst. 1. c.
§ 84. Ex diuerso quod is de-
bm'£, qui se in adoptionem
dedit quaewe in manum con-
uenit, non transit ad coemptio-
natorem aut ad patrem adop-
tiuum, nisi si hereditarium aes
alienum fuerit. tune enim quia
ipse pater adoptiuus aut co-
emptionator heres fit, directo
tenetur ' iure ; is uero, qui se
adoptandum dedit quaeue in
manum conuenit, desinit esse
heres. de eo uero quod proprio
nomine eae personae debuerint,
licet neque pater adoptiuus
teneatur neque coemptionator,
et ne ipse quidem, qui se in
adoptionem dedit quaeue in
manum conuenit, maneat obli-
gatus obligataite, quia scilicet
per capitis deminutionem libe-
retur, tamen in eum eamue
utilis actio datur rescissa capi-
tis deminutione ; et si aduersus
hanc actionem non defendaTi-
tur, quae bona eorum futura
fuissent, si se alieno iuri non
§ 82. There are other kinds of
universal succession not governed
by the law of the Twelve Tables
nor by the praetor's edict, but by
rules of consuetudinary law.
§ 83. When a paterfamilias
gives himself in adoption, or a
woman subjects herself to hand,
all their property, incorporeal
and corporeal, and all debts due
to them, are acquired by the
adoptive father and the fictitious
purchaser, excepting such rights
as are extinguished by loss of
status — usufruct, for instance,
bounden services of freedmen
secured by oath, and claims in
respect of which there has been
joinder of issue in a statutory
trial.
§ 84. Conversely, the debts of
the person who gives himself
in adoption or of the woman
who becomes subjected to hand
(manus), do not pass to the ficti-
tious purchaser (coemptionator)
or adoptive father, unless they are
hereditary debts, for in this case
as the adoptive father or co-
emptionator are heredes instead
of the persons made subject to
them, they become directly liable,
while the person adopted and
woman sold into subjection are
released from liability by ceasing
to be heredes ; but if the debt was
owed in their own name, their
adoptive father or fictitious pur-
chaser incurs no liability, nor do
the person adopted and woman
subject to hand remain even
themselves liable at civil law,
their liability being extinguished
by their capitis deminutio : a prae-
torian action, however, based on
a feigned rescission of their capitis
deminutio (4 §3 8). is granted to the
creditors against them, and if the
action is not defended the property
in. §§ 85-87.] ADROGATIO. CONVENTIO IN MANVM 313
subiecissent, uniuersa uendere which would have belonged to
creditoribus praetor permitti£. them but for their capitis de-
Inst. 1. c. minutio is allowed by the praetor
to be all sold by the creditors.
§ 84. See 1 §§ 97-107, comm., 1 §§ 159-164. By arrogation a man
passed from the status of paterfamilias to that of filiusfamilias,
from domestic independence to domestic dependence. Thus it
operated, a capitis minutio minima. Capitis minutio minima had
various effects on a man's rights and obligations : —
(a) As it implied a change of family, it entailed a loss of rights
founded on agnation, including the sworn services of a freedman,
for the patron was treated in certain circumstances as a quasi agnate.
(6) It had further effects, which perhaps we must be contented
at the present day to regard as merely positive and inexplicable.
Thus it extinguished any ususfructus or usus vested in the arrogatus.
This effect was abrogated by Justinian, Cod. 3, 33, 16.
(c) It extinguished debts owed by the arrogatus. As a filius-
familias was just as capable at civil law of incurring debts as a
paterfamilias (apart from the change in the law made by S. C.
Macedonianum), it is hard to say why the passage from one condition
to the other should operate an extinction of debt. Ihering sug-
gests that when the lex curiata required in Adrogatio was a reality,
it was not enacted until all proved debts of Adrogatus were dis-
charged ; and that the publicity of the proceeding made unin-
jurious to the creditors what the protection of Adrogator required —
the ipso facto extinction of all debts not proved before the enact-
ment of the law. But when the people were merely represented by
thirty lictors, and Adrogatio became comparatively a private pro-
ceeding, the old rule had ceased to be just, and was practically
abolished by the Praetor's Restitutio in integrum.
Adrogatio in the legislation of Justinian only conveyed to the
adrogator a usufruct in the property of the adrogatus. The owner-
ship subject to the usufruct (proprietas) remained in the adrogatus,
Inst. 3, 1 0, 2 ; but the rights of the creditors of adrogatus were not
allowed to be injured by this change, Inst. 3, 10, 3.
Coemptio is not noticed by Justinian, as the in manum conventio
of the wife was obsolete long before his time.
§ 85. Item si legitimam here- § ^ Jf a n who . m
ditatemheres antequam cerjnat to »succeed £ fe to an integ.
aut pro herede gerat, alii in mre tate> before deciaring his formal
cedat, pleno lure fit ille heres, acceptance or informally acting
GUI cessa est hereditas, pro- as heir, surrender the inheritance
inde ac si ipse per legem ad by in jure cessio, the inheritance
hereditatem uocaretur. quodsi (hereditas) passes to the sur-
314 SVCCESSIO PER VNIVERSITATEM [in. §§ 85-87.
posteaquam heres extiterit, ces-
serit, adhuc heres manet et ob
id creditoribus ipse tenebitur ;
sed res corporales transferet
proinde ac si singulas in iure
cessisset, debita uero pereunt,
eoque modo debitores here-
ditarii lucrum faciunt.
§ 86. Idem iuris est, si testa-
mento scriptus heres, postea-
quam heres extiterit, in iure
cesserit hereditatem ; ante adi-
tain uero hereditatem cedendo
nihil agit.
§ 87. Suus autem et neces-
sarius heres an aliquid aga?it
in iure cedendo, quaeritur.
nostri praeceptores nihil eos
agere existimant ; diuersae
scholae auctores idem eos agere
putant, quod ceteri post aditfam
hereditatem ; nihil enim in-
terest, utrum aliquis cernendo
aut pro herede gerendo heres
fiat, an iuris necessitate here-
ditati adstringatur.
renderee exactly as if he were
called to it by the law of the
Twelve Tables itself. But if the
agnate first accepts and then
surrenders, he nevertheless con-
tinues to be heir, and remains
liable to the creditors for the
debts of the deceased : in this
case the corporeal objects of the
inheritance pass to the sur-
renderee just as if they had been
separately surrendered (res singu-
lae), but the debts of the inheri-
tance are thereby extinguished,
the debtors gaining the advantage
of being discharged of liability.
§ 86. The same happens when
an heir instituted in a will
accepts and then surrenders, but
before acceptance his surrender
is inoperative.
§ 87. Whether a self- and
necessary successor passes the
succession by such a surrender
is a question. According to my
school the surrender is in this
case inoperative : the other school
think that the effect is the same
as when the voluntary heirs sur-
render after acceptance, and that
it makes no difference whether a
man is heir by legal necessity on
the one hand or by formal accept-
ance or informal acts of heirship
on the other.
§ 85. Gaius now proceeds to another mode of conveying a juris
universitas, the conveyance by an agnate of a delated but not
accepted inheritance. Cf. 2 §§ 34, 35. We must bear in mind the
distinction between heres and vocatus ad hereditatem, the offer
(delatio) of an inheritance by the law or by a testator, and its final
acquisition (aditio, acquisitio) by the delatee (2 §§ 152, 153, 162). In
the case of the heres necessarius, the self-successor and the testator's
manumitted slave, delatio and acquisitio coincide ; but in the case
of the voluntarius heres, the agnate or the extraneus scriptus, they
are two distinct events. An explanation of the causes of the different
effects of an in jure cessio by these different classes might have
thrown some light on this branch of early Koman law, but the
in. §§ 88, 89.] OBLIGAT10NVM DIVISIO 315
reasons are not given by Gaius, and perhaps we must now be content
to regard these distinctions as merely positive and inexplicable rules.
Perhaps, as Ihering suggests, it was held, that to permit an heir
appointed by will to part with the inheritance — in other words, to
convert it into money — would have been in direct opposition to the
testator's intention ; who, if he approved of such a step, might have
adopted the mode of testation explained in 2 § 189, comm., i.e. might
have instituted not the beneficiary but his slave.
Successio per universitatem, as already mentioned, was an insti-
tution only recognized by the legislator in a limited number of cases :
one individual could not make another as he chose, in pursuance of
private disposition, his universal successor. In respect of the
voluntary transfer, inter vivos, of an inheritance, universal succes-
sion was only admitted in two cases : transfer by an agnate of delata
hereditas (of his right to acquire an intestate succession) in the
interval between delatio and aditio, and transfer (restitutio) by an
heir to a fideicommissaria hereditas under the Sc. Trebellianum,
2 §§ 246, 259, comm.
The sale of an inheritance after acceptance was carried out in later
law not by in jure cessio, but informally by emptio venditio accom-
panied with tradition and stipulations or cession of actions respecting
the debts to or from the inheritance, 2 § 252; cf. Eoby, 2, p. 162.
§ 88. Nunc transeamus ad § 88. We proceed to treat of
obligationes. quarum summa obligations, which fall into two
diuisio in duas species diduci- principal classes, obligations
tur: omnis enim obligatio uel created by contract and obliga-
ex contractu nascitur uel ex tions created by delict,
delicto. Inst. 3, 13; Gaius in
Dig. 44, 7, 1,1.
§ 89. Et prius uideamus de § 89. We first treat of those
his quae ex contractu nascu-n- which we founded on contract,
tur. harum autem quattuor which are of four orders, for
genera sunt : aut enim re con- contract is concluded by delivery
trahitur obligatio aut uerbis of a thing, by words, by writing,
aut litteris aut consensu. or b7 consent.
Inst. 1. c.
Having examined Unequal primary real rights (status) and a
portion of Equal primary real rights, namely, ownership and servi-
tudes (jura in re), and omitting the detailed examination of another
portion of Equal primary real rights, namely, Primordial rights, we
quit the subject of real rights, or rights to forbearances binding
indifferently all the world, and proceed to Obligations, jura in
personam ; that is to say, rights to certain acts or forbearances
binding exclusively certain individuals.
.
316 DE OBLIGATIONIBVS [in. §§ 88,89.
The law of contract differs from other branches of law in that its
function is rather auxiliary to human freedom than restrictive or
coercive. While the law of Status and the law of Ownership are
imperious and peremptory and felt by the fetters they impose on
human volition, the law of Contract is ministerial to manifestations
of will, and fosters and protects the most diversified activity and
enterprise. The law of Contract is the most plastic part of the code
and the part most susceptible of adaptation to the necessities of
commerce: it is the portion of Roman jurisprudence which has
survived with least alteration in modern Europe ; and of all depart-
ments of modern codes it is the portion whose relative importance is
already the greatest and is continually increasing.
But though to contract is a matter of free choice, Obligation, to be
a subject of jurisprudence, implies compulsion : Debitor intelligitur
is a quo invito pecunia exigi potest, Dig. 50, 16, 108. 'Debtor
denotes a person from whom money may be extorted against his
will : ' i. e. it excludes merely moral duties (officia) because the state
applies no coercion to enforce their performance.
Obligation, in the narrower sense in which we proceed to use the
term, also excludes those duties which the legislator imposes on
all the world alike towards a person invested with a Eeal right,
whether a Primordial right, a right of Status, or a right of
Dominion. Duties correlative to jus in rem, which are invariably
negative in character, have scarcely received a distinctive appella-
tion in the Latin language : for the sake of distinction from moral
duties they may be called Necessitas, and for the sake of distinction
from Positive duties, Necessitas abstinendi.
Justinian defines Obligation as follows : Obligatio est juris vin-
culum quo necessitate astringimur alicujus solvendae rei secundum
nostrae civitatis jura, Inst. 3, 13. 'Obligation is a legal bond, by
which we are compelled to some performance (solutio) in accordance
with the law of the state.'
The performance (solutio) which it is the object of the law to enforce
when it imposes an obligation is sometimes decomposed into three
elements, expressed by three terms, dare, facere, praestare. In
personam actio est quotiens cum aliquo agimus qui nobis ex con-
tractu vel ex delicto obligatus est, id est, cum intendimus dare,
facere, praestare oportere, 4 § 2. 'A personal action pursues an
obligation arising from contract or delict, and declares that the
defendant is bound to convey, perform, or make some render for
a wrong.' Obligationum substantia non in eo consistit ut aliquod
corpus nostrum aut servitutem nostram faciat, sed ut alium nobis
obstringat ad dandum aliquid vel faciendum vel praestandum, Dig.
44, 7, 3, pr. 'An obligation has not the effect of making a person
in. §§ 88, 89.] OBLIGATIONVM DIVISIO 317
owner of a corporeal thing or of giving him a right of servitude, but
its object is to compel him to convey the ownership of something, or
to oblige him to render some service, or make some other restitution.
Dare denotes the transfer of ownership in a certain thing or sum of
money : Facere, the render of any service other than the transfer of
ownership in a certain thing : and Praestare may possibly signify the
discharge of any obligation engendered by maleficium.
However diversified may be the Object of an obligation, it is
always transformable, in the eye of the law, into the payment of a
certain sum of money. Ea enim in obligatione consistere quae
pecunia lui praestarique possunt, Dig. 40, 7, 9, 2. ' Obligation can
only have for its Object something redeemable and replaceable by
money.' Hence if it is desired to bind to the performance of some
act not in its nature susceptible of pecuniary appreciation, it is
necessary to make the direct Object of stipulation the payment of
a certain penal sum, stipulatio poenae nomine, and the non-perform-
ance of the act desired the title or condition whereupon the penal
sum shall be forfeited, as by a bond in English law ; for then the
obligation, having a pecuniary value, is a civil obligation enforceable
by the tribunals. The performance of the act desired is thus prac-
tically enforced, although nominally it is removed from the position
of Object of the stipulation to that of Condition.
In speaking of the right of Dominium or Ownership, we have
already noticed (2 § 1, comm.) that besides the primary OBJECT of the
right (abstention from molestation), there is always a secondary
object, land, house, slave, or the like, to which such molestation
relates. So, in view of this transformability of all Objects of obliga-
tion into money payments, we may say that the ultimate OBJECT of
every obligation is an Alienation, or transfer of property ; and is
always a certain amount of Pecuniary value.
The primary and most comprehensive division of Obligatio is one
that has already been noticed, 1 § 1, into (A) CIVILIS obligatio, and
(B) NATURALIS obligatio.
(A) CIVILIS obligatio is obligation enforceable by action, whether
it derives its origin from Jus civile, as the obligation engendered
by formal contracts or the obligation enforceable by penalty in a
delictal action, or from that portion of Roman law which belonged
to Jus gentium ; such as the obligation engendered by Formless
contracts, and obligation to indemnify engendered by delict.
(B) Obligatio NATURALIS is obligation not immediately enforce-
able by action, or obligation imposed by that portion of Jus gentium
which is only imperfectly recognized by law ; obligation, however,
which is recognized by positive law in various operations, e.g. as
founding a defence called Exceptio, i.e. a contention that the right
318 DE OBLIGATIONIBVS [in. §§ 88, 89.
of the plaintiff, though not nullified, is. counteracted by an
opposing right of the defendant, 4 §§ 115-137, comm. ; as giving
a right of Retention (barring condictio indebiti soluti) and of
being used as a good set-off against the claim of the plaintiff
(compensatio), 4 § 61 ; and as capable of forming a basis of various
Accessory institutes of Civil law, such as Novatio, Pignus, Fidejussio,
Constitutum.
Naturalis obligatio, with its partial and occasional protection,
may seem a singular and anomalous institute of Roman law, but it
is paralleled by the recognition, though to a very minor extent, of
Imperfect obligations in English jurisprudence. Imperfect obliga-
tions are so called, not because they are less binding in the forum
of conscience than those which are perfect, but because they are not
directly enforced by political sanctions, because various motives
induce the state to exempt the debtor from positive coercion.
Instances of imperfect obligation are debts barred by a statute of
limitations, and debts discharged by adjudication of bankruptcy.
A written promise to pay by the bankrupt or debtor discharged
by limitation, perfects and revives the imperfect obligation, and
makes it ground to support an action. As in English law a merely
moral duty is an inadequate consideration to support and validate
a promise to pay, the validity of such ratificatory promises shows
conclusively that the obligation of the insolvent, and of the debtor
discharged by limitation, is regarded in English jurisprudence as
something more than a moral obligation, as, to a certain extent,
a legal obligation ; that is, is viewed by English tribunals in the
light in which naturalis obligatio was viewed by Roman tribunals.
Cf. Anson on Contract, p. 116, 1 Oth ed.
Civil obligations fall under two principal classes: (i) those to
which the title or investitive fact is a CONTRACT ; and (2) those
to which the title or investitive fact is a DELICT. In obligation
created by CONTRACT there are two stages: there is first a primary
or sanctioned Personal right antecedent to wrong, and afterwards
a secondary or sanctioning Personal right consequent on a wrong.
In obligation founded on DELICT there is the second stage, a
secondary or sanctioning Personal right consequent on a wrong,
but the first stage is not a Personal right (jus in personam), but
a Real light (jus in rem), whether a Primordial right, right of
Status, or of Property.
These two typical classes, however, fail to comprehend all the
obligations enforceable by action, and two supplementary classes
have to be added : (3) obligations similar to those founded on contract
(obligationes quasi ex contractu) ; and (4) obligations similar to those
founded on delict (obligationes quasi ex delicto). It will be noticed
in. §§ 88, 89.] OBLIGATIONVM DIVISIO 319
that Gaius does not give this fourfold classification of the sources of
obligation, which is found in the Institutes of Justinian, but derives
all obligations either from Contract or Delict. In a passage of the
Digest (44, 7, 1, pr.) excerpted from a work of Gaius, those not
arising in the two principal ways are put in one miscellaneous
group, ' obligationes aut ex contractu nascuntur aut ex maleficio aut
proprio quodam jure ex variis causarum figuris.'
A Contract is a convention or agreement (conventio, pactio,
pactum) enforceable by appeal to a court of law. Et est pactio
duorum pluriumve in idem placitum et consensus, Dig. 2, 14, 1, 2.
'A pact exists when two or more persons come to an identical
resolution, and agreement on a particular subject.'
Consensus, the essence of contract, will be found on close
examination to consist not, as might at first sight appear, of two
precisely similar elements contributed by the two consenting parties,
but of two dissimilar elements, an intention signified by a promisor,
and a corresponding expectation signified by a promisee. The pro-
misor promises that he will do or perform some given act or acts,
or that he will forbear or abstain from some given act or acts ; that
is, he signifies to the promisee that he intends to do the acts or to
observe the forbearances which form the object of his promise : and
the promisee accepts the promise ; that is, signifies to the promisor
his belief or expectation that the latter will do or forbear agreeably
to the intention which he has expressed. Every agreement, then,
consists of a promise proffered and accepted or of reciprocal promises
proffered and accepted by each party; that is, (i)'of a signification
by the promising party of his intention to do the acts or to
observe the forbearances which he promises to do or observe, and
(2) a signification by the promisee that he expects that the promising
party will fulfil the proffered promise. Without signification of
the intention there is no promise; without signification of the
expectation there is no reason for enforcing the promise. The
consensus of the parties is the chiming or going together of this
intention with this expectation ; their direction to a common
object, the acts or forbearances contemplated by the convention.
Pollicitation is the offer of the one party before it is accepted by
the other. Pactum est duorum consensus atque conventio ; pollici-
tatio vero offerentis solius promissum, Dig. 50, 12, 3, pr.
A leading division of contracts or agreements enforceable by
action is into FORMAL contracts and FORMLESS contracts. Formal
contracts are Nexum (in early law), Verbal contract or Stipulatio,
and Literal contract or Expensilatio. Formless contracts are Keal
(Mutuum, Commodatum, Depositum, Pignus), Innominate con-
tract (do ut des, &c.), or Consensual (Emptio, Locatio, Societas,
320 DE OBLIGATIONIBVS [in. §§ 88, 89.
Mandatum). Formal contracts derive their validity from the
observance of a form prescribed by positive law, and calculated to
inspire by its solemnity serious reflection in the negotiators, and
to distinguish definitive resolution from preparatory negotiation and
debate. In Real contract the earnestness and definitiveness of the
resolution is proved by one contractor parting with ownership,
as in mutuum or with physical control of the thing, as in commo-
datum, depositum, pignus. The obligation, too, contracted by the
other party is perfectly plain, being in most cases simply restitution.
In Exchange (permutatio), an Innominate contract, the duty of the
promisor is not quite so simple ; it is not restitution, but the
transfer of an equivalent ; and, accordingly, the validity of the con-
tract of Exchange was not established till a comparatively late
period of Roman jurisprudence. The daily and hourly employment
of the Consensual contracts of Purchase and Hiring, while it would
make the requirement of any formality intolerably inconvenient,
also renders the nature of these contracts perfectly familiar to all
the world, so that the mere mention of their names awakens as
vivid a picture of their consequences as could the observance of the
most ceremonious form. In the remaining Consensual contracts,
Agency and Partnership, the position of the Agent or Partner who
is called to account for property that has passed into his hands or
that has been lost by his negligence is so similar to that of a party
to a Eeal contract that there could be no hesitation in extending to
these contracts the protection of the public tribunals.
An agreement that was neither valid by its Form, as was the
the stipulation, nor was one of the four Consensual contracts with
their familiar names, nor was a Real or innominate contract, that
is, an agreement where on one side the consideration (causa praeter
conventionem, Dig. 2, 1 4, 7, 4) was executed, nor, though outside
the classification of contract, was made valid by the edict or some
special statute, was not directly enforceable at law, and was called
a Nudum pactum. A Nude pact, though ineffectual to produce
civilis obligatio, may produce naturalis obligatio. Igitur nuda pactio
obligationem non parit, sed parit exceptionem, Dig. 2, 14, 7, 4.
'A nude pact creates no (civil) obligation, but creates a defence.'
Interest on a loan could only be secured by the Formal contract of
Stipulatio: but a nude pact to pay interest could be secured by
pignus, Dig. 13, 7, 11, 3, and could be pleaded in bar to a suit for
recovering back the interest when actually paid (condictio indebiti
soluti) : and we have seen that exceptio, pignus, solutum non repeti,
are some of the criteria which indicate the existence of naturalis
obligatio, Dig. 46, 3, 5, 2.
Another important division of contracts is into UNILATERAL and
in. §§88, 89.] OBLIGATIONES EX CONTRACTU 321
BILATERAL. Wherever mutual promises are proffered and accepted
there are in strictness two or more obligations ; but where one of
the promises is thus made to depend on the other, the several obliga-
tions are cross or implicated, and therefore are commonly deemed
to arise from one agreement. Where one only of the agreeing parties
gives a promise, the proffered and accepted promise is called a Uni-
lateral agreement ; where each gives a promise, and the promise of
one is made to depend on the promise of the other, the several
proffered and accepted promises are called a Bilateral or Synallagmatic
agreement. Under a unilateral agreement only one party can sue
or be sued, under a bilateral agreement each party may sue or be
sued in turn. The sole Unilateral agreements or contracts mentioned
by Gaius are Expensilatio, Stipulatio, Mutuum, Emptio-Venditio,
Locatio-Conductio, Societas, are examples of Bilateral agreements.
Depositum, Commodatum, Pignus, Mandatum, are called imperfectly
Bilateral agreements, because they do not necessarily and originally
produce any reciprocal obligation, but only ex postfacto, i. e. in con-
sequence of some circumstance incidental to the agreement, as a claim
of depositarius to be indemnified on account of some necessary expense
he had been put to in respect of the thing deposited with him. The
action founded on the original and principal obligation of a semi-
bilateral agreement, i. e. the action of the depositor, lender for use,
pawnor, or person giving the mandate, is called judicium directum or
actio directa : the action founded on the incidental or ex postfacto
obligation, i. e. the action of the depositary, borrower for use, pawnee,
agent, is called judicium contrarium or actio contraria. The Unilateral
agreements above mentioned, even though, like Mutuum, institutions
of Jus gentium, give rise to condictiones or actions of strict law
(stricti juris actiones); bilateral and semi-bilateral agreements give
rise to equitable actions (bonae fidei actiones).
The classification of contracts by Gaius does not include the
Nexum, which seems to have been a form of contracting in early
law. No precise information concerning its characteristics have come
down to us, and hence modern writers frequently differ in their
explanation of it. (See Muirhead's Koman Law, p. 151 ; Roby,
Eoman Private Law, Bk. V. App. B ; Sohm, pp. 52, 392.) Nexum
is sometimes used in a general sense to include all proceedings
carried out per aes et libram, while it is elsewhere distinguished
from mancipation. Nexum Manilius scribit omne quod per libram
et aes geritur, in quo sint mancipia. Mucius quae per aes et libram
fiant ut obligentur, praeterquam mancipio detur. Hoc verius esse
ipsum verbum ostendit, de quo quaeritur ; nam id est, quod obligatur
per libram neque suum fit, inde nexum dictum. Varro, L. L. 7, 1 05.
— Nexum est, ut ait Gallus Aelius, quodcumque per aes et libram
322 QVIBVS MODIS OB. NASCVNTVR [in. §§ 88, 89.
geritur, id quod necti dicitur, quo in genere sunt haec, testamenti
factio, nexi datio, nexi liberatio, Festus.
The nexi liberatio seems to be referred to by Gaius, § 173. Est
autem alia species imaginariae solutionis per aes et libram. Quod
et ipsum genus certis in causis receptum est ; veluti si quid eo
nomine debeat quod per aes et libram gestum sit sive quid ex
judicati causa debeat. Nexum and mancipium are clearly dis-
tinguished in the following well-known citation of Festus from the
Twelve Tables — cum nexum faciet mancipiumque, uti lingua nuncu-
passit, ita jus esto.
From these and other passages we may gather that Nexum in
a specific sense was, according to the law of the Twelve Tables, a
form of obligation entered into per aes et libram.
As a form giving rise to an obligation Nexum was apparently a
contract for a money loan (certa pecunia credita) ; not a fictitious
money loan, as has sometimes been supposed, but a real one, just as
mancipium was originally not a fictitious, but a real sale. Debtors
who bound themselves to their creditors in this solemn way were
the nexi, whose harsh treatment in early times is dwelt on by Livy ;
if they made default on the day of payment, they were immediately
treated as judgment debtors, being without further process liable to
manus injectio ; i. e. to be seized by the creditor and taken into
court in order that the praetor might award personal execution ;
in other words, deliver him as a quasi-slave to the creditor (addicere,
duci jubere).
Nexum as a solemn form of contracting a loan was abolished,
or at least deprived of its sanction, by the lex Poetelia, Livy, 8, 28 :
as a form of extinction of obligation in certain cases, Nexum con-
tinued to exist in the time of Gaius, § 173.
In the Twelve Tables the law of contract is still in a rudimentary
stage. The formal obligation of Nexum is confined to money loans.
Stipulation belongs to later law. No informal contract is recog-
nized. Such contracts, as deposit, loan for use and pledge, could
only be made, if at all, by the tortuous process of mancipatio
cum fiducia.
The arrangement adopted by Gaius is not without significance.
He begins with a Eeal, that is, a Formless contract, found in jus
gentium ; and from these Eeal contracts he selects Mutuum, the
contract which took the place of the old formal contract of Nexum,
the source of Koman contract law. He then proceeds to Formal
contracts, Verbal and Literal, which appear to have been subse-
quent to the Twelve Tables ; and concludes with the remaining
and comparatively modern class of Formless contracts, namely the
Consensual.
in. §§ 90, 91.] RE CONTRACTA OBLIGATIO
323
§ 90. Re contrahitur obligatio
uelut mutui datione. (mutui
autem datio) proprie in his
[fere] rebus contingit quae
pondere numero mensura con-
stant, qualis est pecunia nu-
merata uinum oleum frumen-
tum aes argentum aurum. quas
res aut numerando aut metiendo
aut pendendo in hoc damus, ut
accipientium fiant et quando-
que nobis non eaedem, sed aliae
eiusdem naturae reddantur.
unde etiam mutuum appella-
tum est, quia quod ita tibi a
me datum est, ex meo tuum fit.
Inst. 3, 14, pr. ; Gams in Dig.
44,7,1,2.
§ 91. Is quoque qui non de-
bitum accepit ab eo qui per
errorem soluit re obligatur.
nam proinde ei condici potest
SI PARET EVM DARE OPORTERE,
ac si mutuum accepisset. unde
quidam putant pupillum aut
mulierem, cui sine tutoris
auctoritate non debitum per
errorem datum est, non teneri
condictione, non magis quam
mutui datione. sed haec species
obligationis non uidetur ex
contractu consistere, quia is
qui soluendi animo dat magis
distrahere uult negotium quam
contrahere. Inst. 3, 14, 1.
§ 90. Of real contracts, or con-
tracts created by delivery of a
thing, we have an example in
loan for consumption, or loan
whereby ownership of the thing
lent is transferred. This relates
to things which are estimated by
weight, number, or measure, such
as money, winer oil, corn, bronze,
silver, gold. We transfer owner-
ship of our property in these on
condition that the receiver shall
transfer back to us at a future
time, not the same things, but
other things of the same nature:
and this contract is called Mutuum,
because thereby meum becomes
tuum.
§ 91. The receiver of what was
not owed from a person who pays
in error is also under a real obliga-
tion, for he may be sued by Con-
dictio with the formula : ' If it be
proved that he ought to convey.'
just as if he had received the pro-
perty in pursuance of a loan.
And, accordingly, some have held
that a ward or female, if their
guardian has not authorized them
to receive a payment, are not
liable to be sued for money paid
in error any more than they are
for money received as a loan.
This, however, is a mistake, as
the obligation in this case seems
to be of a kind not arising from
contract, as a payment in order
to discharge a debt is intended to
extinguish an obligation, not to
establish one.
§ 90. The thing to be restored by the borrower in a loan for con-
sumption (money being consumed by spending it) was not the
specific thing that was borrowed, but some other thing of the same
genus. Such members of a genus as are naturally capable of mutual
substitution (quae vice mutua funguntur) received from modern
civilians the barbarous name of res fungibiles. A more significant
barbarism, if any was necessary, would have been res vicariae, from
Y z
324 QVIBVS MODIS OB. NASCVNTVR [in. §§90, 91.
the principal word of the definition. The classical name was neither
res fungibilis, nor res vicaria, but Quantitas, Dig. 44, 2, 7, pr.
§ 91. The auctoritas of the guardian was only wanted to supply
the want of capacity in the ward to take care of his own interests.
As Condictio indebiti, the action brought for recovering money paid
by mistake, was not founded on disposition or contract, but on the
fact that a defendant had been without cause enriched at the expense
of the plaintiff, there seems to be no reason why it should not be
brought against a ward who receives without his guardian's sanction
money to which he is not entitled, except that the ward might in
the meantime have improvidently spent the money he had received.
Justinian decides that the ward is not under the circumstances liable
to condictio indebiti, Inst. 3, 14, 1.
The obligation arising by a contract of mutuum is only an obligation
to repay the principal of the debt. The loan is regarded as gratuitous ;
if any interest is intended to be paid, it requires to be secured by an
accompanying verbal contract, or stipulation. The repayment of the
principal was enforced by the general personal action of condictio.
Connected with the contract of mutuum was the senatusconsultum
Macedonianum, named, according to Theophilus, after a parricide,
according to some commentators, after a money-lender. This decree
passed, according to Tacitus, under Claudius (Annales, 11, 13), ac-
cording to Suetonius, under Vespasian (Suet. Vesp. 11), made a loan
of money to a son under power (filiusfamilias) without the consent of
the father irrecoverable by action though binding naturaliter (naturalis
obligatio). Neither the age nor the rank of a filiusfamilias affected his
incapacity to contract a pecuniary loan. The disability of the filius-
familias did not extend to any contract other than a pecuniary loan.
By the English law bargains made with expectant heirs and
remaindermen, during the lifetime and without the knowledge of the
parent, may be set aside by a court of equity on the ground of unfair-
ness or inadequacy. See Pollock on Contracts, p. 622, 7th ed.
Besides Mutuum there are three other Keal contracts,. Com-
modatum, Depositum, Pignus; there are also the Innominate con-
tracts, which resemble the Keal, in that they are concluded by an
act being executed on one side, such act consisting in their case
either in the conveyance of a thing for a promise to convey some-
thing else or to perform some service in return, or in the performance
of a service for a promise to convey a thing or to render a service
in return ; where a thing is thus conveyed in the first instance the
obligation of the transferee is not in the innominate, as in the real
contract, to return the same specific thing or thing of the same kind
(genus), but something different. Each of these modes of contracting
requires a brief notice.
in. §§90, 91.] RE CONTRACTA OBLIGATIO 325
Commodatum, a loan for use, is the gratuitous lending of an article
to be used by the borrower. It must be gratuitous, for, if any com-
pensation is to be paid, the transaction ceases to be a commodatum,
and becomes a letting and hiring (locatio conductio). A loan for use
differs from a mutuum, or loan for consumption, in that it passes no
property to the borrower. Accordingly, in a loan for use the specific
thing that was lent is to be returned, whereas in a loan for con-
sumption it is only to be returned in kind. Again, in case of
destruction by an inevitable accident, as fire, shipwreck, or invasion,
in a mutuum the loss falls on the borrower (genus et quantitas
nunquam pereunt), in a commodatum on the lender. The com-
mentators have expressed the owner's risk in such cases by the
formula, res perit domino, ' the loss from accidental destruction falls
on the owner ' ; and this proposition holds good of contracts of
mutuum and commodatum and most others ; but in a consensual
contract of sale of a specific thing (emptio venditio), as soon as the
obligation is complete, before the property has passed by delivery
(traditio) to the buyer, if the thing is destroyed without the fault
of the vendor, the loss falls on the buyer (res perit emptori), and
he can be compelled to pay the purchase-money, although the object
of sale has never been in his possession, Inst. 3, 23, 3. We must
not identify the borrower's right to use the thing lent to him (com-
modata), which is a contractual one, with the personal servitude
(jus in re) called Usus, which is created by other methods and
governed by different rules. (For the law relating to the liability
of commodatarius and on account of negligence, see comm. at the
end of this book.)
Depositum is the delivery of a thing for custody, to be redelivered
on demand, without compensation. It is properly gratuitous, for if
a compensation is to be given it is a contract of hiring and letting,
and not a deposit. The ownership remains in the depositor ; the
depositary has sometimes interdict Possession, as in the case of the
Sequester, but as a rule, merely Detention, 4 § 1 70, comm. The identical
thing that was deposited is to be returned, not an equivalent of the
same kind or quality, as in mutuum. An involuntary depositor,
that is, one under stress of shipwreck, fire, civil commotion, the fall
of a house, can sue in penal damages for twice the value of the
deposit. Sequestration is the deposit of a subject of litigation by
consent of parties or order of the court in the hands of a stakeholder
(sequester) to abide the result of the trial. When a depositary is
bound to restore not a specific thing (idem) but its equivalent, and
by a pactum adjectum pays interest for the privilege of using it in
the. interim ; e. g. when a banker pays interest to his depositors ; the
contract is called Depositum irregulare, and ownership in the thing
326 QVIBVS MODIS OB. NASCVNTVR [in. §§90, 91.
deposited, as well as possession, contrary to the general rule passes to
the depositary. Dig. 16, 3, 24. The passages in the Digest relating
to this show that Banking in the modern sense of the word, i. e. the
payment of a small interest to depositors and receipt of a larger
interest from borrowers of the deposit, was practised by Eoman
Mensularii, Vangerow, § 630.
Pignus, pledge, pawn, or mortgage, is the creation of a real right
(jus in re aliena) in a thing, movable or immovable, to be held as a
security for a debt, and to be retransferred when the debt is satisfied.
But this conception of pignus was only reached by gradual steps.
There are three forms of giving real security to a creditor, cor-
responding to three eras in the development of Eoman law, which
must be separately examined.
(1) The earliest is not in the regular form of a pledge, being effected
by a maneipatio or in jure cessio of property, accompanied with a
fidueia, or fiduciary agreement for reconveyance, cf. 2 § 60. As
a form of security, it is analogous in principle to the English
common law mortgage, the ownership in the thing pledged being
conveyed to the creditor on the understanding that he is to reconvey
it when the debt is paid. The security which this gives to the
creditor is that he can recover the thing by vindicatio from any
possessor of it, and can sell it as he pleases, though he is liable to
the debtor in the actio fidueiae, if he exercises his right improperly.
This personal action is the only remedy which the debtor has in
respect of the property which he has made over as security for his
debt, as having parted with the ownership he has no actio in rem
for recovery of it from third parties. But in course of time it
seems to have become a common practice for the creditor to allow
the debtor to keep possession of the pledge, the latter holding it of
him by leave and licence (precario) and having interdict possession of
it. The unsatisfactory character of this way of securing a creditor,
considered from the point of view of the debtor, is obvious. Yet in
a tablet found at the mouth of the Guadalquivir, which probably
belongs to the first century after Christ, we see that it was still in
use not long before the time when Gaius wrote (Bruns, Fontes,
ed. 6, no. 110).
(2) Pignus, in the strict sense, was effected simply by delivery of
possession without in jure cessio or maneipatio. The debtor continued
to be owner of the thing pledged, the creditor or pledgee only
acquiring interdict-possession of it. But a condition was sometimes
inserted in the agreement, by which it was agreed that the thing
given in security should become the property of the creditor in case
of default (lex commissoria), though by later law such a condition
was made void.
"in. §§90,91.] BE CONTRACTA OBLIGATIO 327
The effect of Pignus was to put the debtor in a much more satis-
factory position than in the previous case ; but on the other hand the
security of the creditor was thereby rendered thus weaker, since he
was deprived of his actio in rem to recover the thing from third
parties, having only a possessory interdict. Nor apart from special
agreement (pactum de vendendo) had he any right of sale.
(3) The law of pledge was established on a satisfactory footing,
when the praetor gave the creditor or pledgee the actio quasi-Serviana
in. rem or hypothecaria, by which he acquired a real right in the
thing (jus in re aliena), while the debtor remained owner of it ; a
right of sale, in case of default, being implied in the transaction. By
these changes both the interests of the debtor and creditor were fully
regarded. Under this system there was the further advantage, that
property of any kind might be given as security to a creditor by
Hypothecation, i. e. by mere agreement without delivery of posses-
sion. In this case it was simply the creation of a jus in re, imposing
no Obligation on the creditor thus secured. If, however, a pignus
was. created by delivery of the thing pledged, the legal position of the
pledgee would be of a twofold kind: (i) he would have a jus in re
aliena, which he could enforce by actio quasi-Serviana in rem ; (2) there
would be a contractual relation between him and the debtor, they being
bound to one another by the real contract of pignus, which was
enforced by the actio pigneraticia directa and contraria in personam.
The action of the creditor to recover the thing pledged, called
quasi-Serviana, hypothecaria, or pigneraticia, was as we have seen
a real action (in rem). It was originally, as actio Serviana, only given
to a farmer (colonus), whose invecta et illata were hypothecated to
his landlord for rent. It was probably an actio arbitraria with a
formula in factum concepta (these terms will be explained in 4 § 47,
comm.) to something like the following effect : Si paret inter
Aulum Agerium et L. Titium convenisse, ut ea res, qua de agitur,
Aulo Agerio pignori hypothecaeve esset propter pecuniam debitam,
eamque rem tune cum conveniebat, in bonis L. Titii fuisse eamque
pecuniam neque solutam neque eo nomine satisfactum esse, neque per
Aulum Agerium stare quo minus solvatur, nisi ea res arbitratu tuo
restituetur, quanti ea res erit, tantam pecuniam judex Numerium
Negerium Aulo Agerio condemna, &c., Lenel, § 267.
Besides this actio Hypothecaria, whereby the rights of the
mortgagee were definitively decided, there was an Interdictum
Salvianum, 4 § 147, to enable the landlord to recover the goods of
the farmer pledged to him for his rent. It is most probable that
this remedy was not like the actio Serviana, which was of later
origin, maintainable against third parties in possession of the goods.
Its formula was probably something like the following: 'If such
328 QVIBVS MODIS OB. NASCVNTVR [m. §§90,91.
and such a dave is one of the things respecting which you agreed
with the plaintiff that whatever was inducted, illated, imported
into such and such land, or was thereon born or produced, should
be pledged to the plaintiff to secure the payment of the rent of
such land; in that case I prohibit your employment of force to
hinder the plaintiff from abducting the slave.' Thus the relation
of actio Hypothecaria to interdictum Salvianum would resemble that
of Vmdicatio to the interdict Utrubi or Uti possidetis, 4 § 148, or that
of Hereditatis petitio to the interdict Quorum bonorum 4 § 144
Innominate or unnamed contract is an agreement not falling
under any of the classes of named contract, which becomes binding
b, ; execution on the part of one of the contractors. Such contracts
which are of a miscellaneous character, are similar to the real in the
principle of their formation, but differ from them in the ways we
have previously pointed out. Bilateral conventions, Real or Con-
sensual, fall into four classes: Aut enim do tibi ut des, aut do ut
facias, aut facio ut des, aut facio ut facias, Dig. 19, 5, 5 pr < There
may be a transfer of property to you on my part in cooperation of
your having to transfer property to me in exchange, or transfer of
property on my part in consideration of your having to make some
other kind of performance to me, or some other act of performance
m consideration of your having to transfer something to me or
performance of some other kind than transfer in consideration of
your having to make performance of some such other kind in
exchange Some agreements, before execution on either side, would
g™ rise to Named consensual contracts, sale, letting, partnership,
or mandate ; and these would be at once enforceable by action : while
those agreements unaccompanied by execution, whose nature ex-
eluded them from these appellations, would have no legal validity
Those agreements which to consensus add execution, but fail to
satisfy the definitions of the Named Eeal contracts, are thrown into
the miscellaneous class called Innominate. We have thus the follow-
ing classification. Contracts are (i) formal (verbis) and (litteris) or
(2) informal, and in the latter case they are either (a) consensual, i. e.
one of the four contracts established by simple agreement, or (6 real
(mutuum commodatum, depositum, pignus), or (c) nameless (in-
m4 ^greemejnts known to ™ as pacta vestita, § 135, comm.
should have been added to class (a). To whatever category innomi-
nate contracts belonged, do ut des, do ut facias, facio ut des, facio ut
re enf°rCeable b " dvi1 a
ct o i re, en°rCeae y " dvi1' aS °PP°Sed to a Praetorian,
action, called actio m factum praescriptis verbis. Dig. 19 5 De
Fraescnptis verbis et in factum actionibus.
bJa!!t ^ "V11 rfaCtUm PraescriPtis verl>is was so denominated
se, in the absence of a generic name for the contract, the fact
in. §§ 90, 91.] CONTRACTVS INNOMINATI 329
begetting the obligation was detailed at length in the beginning
of the formula ; Actio quae praescriptis verbis rem gestam demon-
strat, Cod. 2, 4, 6. Hence it is called actio in factum praescriptis
verbis. But at the time when Gaius wrote and till a much later
period, this term was not in use, the expression used by the classical
jurists for this remedy being not actio, but agere praescriptis verbis.
There was indeed no one action in such cases, but a special one was
adapted to provide for supplementary cases, which required one, as
they arose, where none of the common forms of action were exactly
applicable (Sohm, p. 399, n. 4). The action is said to be in factum,
because, as it did not belong to any regular class of action, the facts
giving rise to it had to be specifically set out, we must not, however,
be misled by this to think that it is a kind of action which belongs
to the class of actiones in factum, as opposed to actiones in jus con-
ceptae ; the actio in factum, we are concerned with, being in jus, not
in factum, concepta. This, however, is a misleading name, the
formula of the action containing the word 'oportet' (quidquid ob
earn rem ilium illi dare facere oportet), that is to say, having an
intentio in jus, cf. 4 §§ 45, 46. The name of this Eoman action ex
contractu may be illustrated by a comparison with the name of the
old English form of procedure, trespass on the case, so named from
the comparative particularity with which the circumstances of the
plaintiffs case are detailed in the written allegations. It is some-
times called actio civilis incerti because it is brought to recover
whatever damages (quanti interest) the plaintiff had suffered by
reason of the defendant's default. It was an action belonging to
the class of actiones bonae fidei. Cf. 4 §§ 1 8-20, comm.
Examples of Innominate contract are Exchange (permutatio), as
if I have conveyed my land to you on the understanding that you
are to convey your land to me in return. Sale or hire not coming
under the named contracts because the price or hire money have not
been definitely fixed, as if I buy and take away a thing from a shop
on credit without settling the price, or hire a servant who works for
me before the exact amount of his wages has been determined.
When the executed part of an innominate contract was a transfer
of property, the plaintiff had alternative remedies, he might either
sue the other party for the loss of the thing, which he had con-
veyed, by condictio causa data, causa non secuta, i.e. by a suit to
recover property conveyed for a consideration which has failed, or
he might bring an action on the contract — praescriptis verbis —
claiming damages for the loss arising from its breach. Dig. 19,
5, 5, 1.
It may illustrate the Roman conception of Innominate contract
if we indicate the change that has supervened in this matter from
330 QVIBVS MODIS OB. NASCVNTVR [in. §§ 92-96.
the greater force that is conceded to mere agreement (nuda voluntas)
in modern jurisprudence.
With the Komans the execution by one of the parties of his
part of an Innominate contract was essential to its efficacy. This
execution differentiated the agreement from a nudum pactum and
gave it validity, but, naturally, only against the party who had
failed to make the return promised. The party who had executed
was not similarly bound : he had a right of abandoning the contract
and recovering back what he had delivered, not merely when the
counter -execution was not made at the time appointed, or had
become impossible by the culpa of the other party, or had been
always impossible (condictio ob causam non secutam) ; but when the
party who had delivered simply changed his inclination (condictio ex
mera poenitentia).
This was due to the exclusive character of the Eoman contract
system. We find on the contrary in modern Roman law, as it was
in force in parts of Germany before the new civil code was enacted,
pactum treated as if it had been accompanied by Stipulation, that
is, as having the validity given by Form — in other words, no pacta
are nuda, all are vestita — and so agreements are enforceable irrespec-
tively of their part-execution : enforceable irrespectively of execution
against both parties alike, who herein stand on precisely the same
footing : that is to say, the party who has delivered what he had
to deliver has no right to recover it back either ex mera poenitentia,
or ob causam non secutam, but merely the power to compel the
other party to a corresponding performance. Vangerow, § 599.
§ 92. Verbis obligatio fit ex § 92. A verbal contract is
interrogatione ei> responsione, formed by question and answer,
ueluti DAKI SPONDES ? SPONDEO : tnus ' ' Dost thou solemnly pro-
DABIS? DABO: PROMITTIS? PRO- mise that a thing sha11 be con'
MITTO : FIDEPROMITTIS 1 FIDE- veyedtome?' 'I do solemnly
PBOMITTO: FIDEIVBES? FIDE- P™1™86'' 'Wilt thou convey?
IVBEO: FACIES? FACIAM. IJ^JS^V ^ ,OSt th°U Ple,d.f ,
T , o -IK thy credit? 'I pi edge my credit,
inst. 0, io, pr. <Dost thou bid me trugt thee ag
guarantor?' 'I bid thee trust
me as guarantor.' 'Wilt thou
perform ? ' 'I will perform.'
§ 93. Sed haec quidem uer- § 93 The formul < Wilt thou
borum obligatio DARI SPONDES? solemnly promise?' 'I will
SPONDEO propria cmmm Ro- solemnly promise,' is only valid
manorum est ; ceterae uero between Roman citizens ; the
iuris gentium sunt, itaque inter others belong to gentile law, and
oinnes homines siue ciues Ro- bind all parties, whether Romans
manos siue peregrinos ualent. or aliens, and, if understood, bind
in. §§ 92-96.]
VERBIS OBLIGATIO
331
et quamuis ad Graecam uocem
expressae fuerint, ueluti hoc
modo (Awo-eis Awcra>* 'O/xo-
Aoyets ; 'O/ioXoyw' Ylicrrfi Kf-
Aevets; ITio-ret KeXevco' rioiTjo-ets;
HotTjo-co), [etiam haec] tamen
inter ciues Romanes ualen£, si
modo Graeci sermonis intel-
lectum habeant. et e contrario
quamuis Latine enuntientur,
tamen etiam inter peregrines
ualent, si modo Latini sermonis
intellectum habeani. at ilia
uerborurn obligatio DARI SPON-
DES 1 SPONDEO adeo propria
ciuium Romanorum est, ut ne
quidem in Graecum sermonem
per interpretationem proprie
transferri possit, quamuis dica-
tur a Graeca uoce figurata esse.
Inst. 3, 15, 1 ; Theoph. 3, 15, 1.
§ 94. Vnde dicitur uno casu
hoc uerbo peregrinum quoque
obligari posse, ueluti si im-
perator noster principem ali-
cuius peregrini populi de pace
ita interroget PACEM FVTVEAM
SPONDES1? uel ipse eodem modo
interrogetur. quod nimium
subtiliter dictum est, quia si
quid aduersus pactionem fiat,
non ex stipulate agitur, sed
iure belli res uindicatur.
§ 95. IQud dubitari potest,
si quis | 1 .
Dig. 45, 1, 2, and 6.
§ 95 a. Sunt et aliae obli-
gationes — |
(7 uersus in C legi nequeunt)
— corporal 1
item I si debitor
Romans when expressed in Greek,
and aliens when expressed in
Latin. The formula, ' Wilt thou
solemnly promise (dare spondes)?'
is so peculiarly Roman that it
cannot be expressed in Greek,
though the word 'spondes' is
said to have a Greek origin.
mulieris iussu eius, dum
doti dicat quod debet;
alius
§ 94. According to some, there
is one case in which an alien
may be bound by this word,
namely, when a Roman emperor
in concluding a treaty thus in-
terrogates a foreign sovereign :
' Art thou sponsor for peace ? '
and the Roman emperor is in-
terrogated in the same way in
his turn. But this is a refine-
ment on the law, for the viola-
tion of a treaty is not redressed
by an action ex stipulatu but by
the law of war.
§ 95. (It may be questioned
whether if the question is in the
form ' Dost thou solemnly pro-
mise ? ' and the answer to it is
simply, 'I promise,' or 'I will
give,' any legal obligation is
created.)
§ 95 a. (There are also other
obligations which can be con-
tracted without any antecedent
question, as when a woman makes
a solemn declaration settling
dotal property, movable or im-
movable, on her betrothed or her
332 QVIBVS MODIS OB. NASCVNTVR [in. §§ 92-96.
autem obliga?'^ hoc modo | non
potest. | et ideo si quis alius
com muni iure obliga
1—. Epit. 2, 9, 3.
See Appendix.
(Cf. Ulp. 6, 2.
Dotem dicere potest mulier
quae nuptura est, et debitor
inulieris si iussu eius dicat ;
item parens mulieris virilis
sexus per virilem sexum co-
gnatione iunctus, velut pater
avus paternus.)
§ 96. Item uno loquente
husband. And not only can the
woman herself be bound in this
form, but also her father and her
debtor, the latter having to de-
clare that he owes the debt to
her future husband as dower. It
is only by these three persons
that a woman can be legally
bound by such a formal promise
of dower without any antecedent
form of question. Other persons
who promise a man dower for a
woman can only be made liable in
the ordinary legal way, that is, by
responding to a question and pro-
mising what has been put to them
in the form of a stipulation.
§ 96. There is another case in
which an obligation is contracted
by a declaration of one of the
parties without any previous in-
terrogation, which is when a
freedman takes an oath to his
patron promising some payment
or performance of some function
or service, the obligation being
created in this case not so much
by the form of words as by the
sanctity attaching to the oath.
This is the only instance in
Eoman law of an obligation being
contracted by means of an oath,
though if we searched the par-
ticular laws of foreign communi-
ties, other instances might be
found.)
§ 92. Before we proceed to examine Formal, that is to say,
Verbal and Literal contracts, it is desirable to explain the difference
between a formal and informal contract.
A Formal Disposition is one for which, under pain of nullification,
the necessary or exclusively valid form of expression or mani-
festation of intention is prescribed by the law. A Formless Dis-
position is one where the individual is free to choose the form of
expressing, or mode of manifesting, his intention.
These accessory formalities and solemnities are ancillary to the
essential purpose of the transaction, being destined partly to prevent
rash and inconsiderate engagements, partly to furnish evidence and
proof of the agreement or principal part of the transaction.
(3 uersus in C legi nequeunt]
• haec sola causa
est, ex qua iureiurando con-
trahitur j obligatio. sane ex
alia nulla causa iureiurando
homines obligantur, utique cum
quaeritur de iure Romanorum.
nam apud peregrines quid iuris
sit, singularum ciuitatium iura
requirentes aliud intellegere
poterimus — . Epit. 2, 9, 4.
See Appendix.
m. §§92-96.] VERBIS OBLIGATIO 333
The peculiar characteristic of Formal, that is to say, Verbal and
Literal contracts, is this : evidentiary solemnities compose in these
contracts an indispensable part of the title to a jus in personam.
The Formless contracts, namely, the Eeal contracts, of which we
have already treated, and the Consensual contracts, of which we
shall treat hereafter, cannot, of course, be enforced in a court of law
unless they are proved to have been concluded, unless, that is,
evidence be given of their existence. But the contract and the
evidence of the contract are distinct and independent. In Formal
contracts a preappointed evidence of the essential portion of the
contract, that is, of the intention of the promisor and expectation
of the promisee, is made by the law a constituent accessory element
of the contract or title itself. It is not perfect or complete without
this evidence. If the transaction did not include certain preappointed
evidentiary formalities, the Verbal or Literal contract has never been
formed and does not exist.
It was the formal contract entered into by question and corre-
sponding answer, called stipulatio, which became the general mode
of contracting obligations in Roman law. The time of its intro-
duction into Eoman law cannot be ascertained with any exactness.
There is no allusion to it in the fragments of the Twelve Tables, or
in the references to that law, which have come down to us from
Eoman times, and as a binding form of contract it was probably
not in existence till a somewhat later period. The earliest definite
trace of it is in the Lex Aquilia 287 B.C., which contains a special
provision concerning additional parties to a stipulation, called adsti-
pulatores, § 115. Various suggestions have been made by modern
writers to explain the origin of the stipulation. (See, for these and
for the literature on the subject, Muirhead's Roman Law, § 39.)
The idea that the stipulation developed in some way out of nexum is
now abandoned. It seems more likely that in the form spondes ?
spondeo, question and answer were first used for religious purposes,
and subsequently adopted by law as a means of entering into a legal
obligation (cf. Sohm, p. 66, n. 14). The action for enforcing a
stipulation was at first confined to cases in which certa pecunia or
certa res was thus promised, though afterwards it was applicable
also to uncertain claims, the action being condictio, which was stricti
juris. But the characteristic of the stipulation, which made it in
course of time a form for creating any kind of obligation, was that
the promise contained in it, though unilateral, might be conditional.
A condition was not annexable to all dispositions.
It was annexable to all Testamentary dispositions ; but among
formal dispositions inter vivos the only one to which it could be
annexed was formation of contract by Stipulation.
334 QVIBVS MODIS OB. NASCVNTVR [in. §§ 92-96.
We have seen that conditions were excluded from Expensilatio
or Literal Contract : it was their admissibility in Stipulatio that
made the latter, unlike Expensilatio, a generic or universal form of
contract : a contract equally applicable whatever the object that the
contractors desired to secure. Primitive jurisprudence, as we have
noticed, only recognized stipulations, whose object was a dare or
conveyance of property ; not stipulations whose object was a facere
or non-facere, some other kind of performance or forbearance. But
when facere or non-facere was allowed to form the condition of an
obligation, whose object was a dare, and so, when the payment of
a penalty could be made contingent on the performance or non-
performance of a certain act, it became possible to stipulate, virtually
or indirectly at least, for facere or non-facere as well as for dare.
Inst. 3, 15, 7. Non solum res in stipulatum deduci possunt, sed
etiam facta : ut si stipulemur fieri aliquid vel non fieri. Et in hujus-
modi stipulationibus optimum erit poenam subicere, ne quantitas
stipulationis in incerto sit ac necesse sit actori probare, quid ejus
intersit ; itaque si quis ut fiat aliquid stipuletur, ita adici poena debet :
' si ita factum non erit, turn poenae nomine decem aureos dare
spondes?' sed si quaedam fieri, quaedam non fieri una eademque
conceptione stipuletur, clausula erit hujusmodi adicienda : 'is adversus
ea factum erit sive quid ita factum non erit, tune poenae nomine
decem aureos dare spondes ? '
The form of the stipulation, not being in writing or attested by
witnesses, must have been often found imperfect for evidentiary
purposes. Accordingly we find that it was not uncommon in the
time of the classical jurists for the parties to a stipulation to draw
up a written memorandum of its contents, called cautio, and in later
times, under the Byzantine Emperors, there was an increasing ten-
dency to lay stress on the cautio of the stipulation rather than on the
stipulation itself, to which the eastern part of the empire may not
have been well accustomed. Hence we find the law on this subject
laid down by Justinian to be, that if a written memorandum embody-
ing the terms of a stipulation is proved by the plaintiff, the parties
are presumed to have actually entered into a stipulation, unless
the defendant can show that he was absent on the day from the
place where the stipulation is said to have been entered into, Inst.
3, 19, 12.
The principal peculiarity that results from the nature of formal
contract, and so of that of the verbal and literal contracts of Eoman
law, which distinguishes them from informal contracts is, that
informal contracts are not legally valid unless the ground on
account of which the promise is made is shown ; whereas verbal
and literal contracts, securing by the solemnity of their formalities
in. §§ 92-96.] VEKBIS OBLIGATIO 335
due deliberation on the part of the contractors, are valid in favour of
the promisee apart from their object. See Appendix to this Book.
Although, however, a mere abstract promise in a stipulation apart
from its object was binding, as e. g. do you promise to pay 10 aurei?
I do promise, — yet in course of time, a defendant who had been
induced to enter into a stipulation by fraud, or who had not
received the consideration, on account of which his promise was
made, was allowed to plead the exceptio doli or plea of fraud, an
equitable defence, probably introduced by Aquilius Gallus (cf. Moyle's
Inst. App. 8, Bk. 3). By this means the circumstances which gave
rise to the promise would be brought into consideration in the
action. The practice of giving a written acknowledgment or cautio
for loans of money grew common, and, as has been mentioned, great
evidentiary importance came to be attached to such written docu-
ments, especially in the eastern part of the empire.
If, instead of generally alleging fraud (Si in ea re nihil dolo malo
Auli Agerii factum est neque fit), the plea of the defendant who was
sued on such an acknowledgment alleged the particular fact of his
never having received the alleged loan (exceptio in factum composita), it
was called, in later imperial times, exceptio non numeratae pecuniae.
Cod. 4, 30, 1, 3. Compare 4 § 116 Si stipulatus sim a te pecuniam,
tanquam credendi causa numeratus, nee numeraverim . . . placet per
exceptionem doli mali te defendi jubere with Inst. 4, 1 3, 2 Si quis,
quasi credendi causa, pecuniam stipulatus fuerit, neque numeraverit
. . . placet per exceptionem pecuniae non numeratae te defendi
jubere.
An important peculiarity of the exceptio non numeratae pecuniae
was that the burden of proof was not, as in other exceptions, on the
defendant, but on the plaintiff, who would have to prove in the first
place the payment of the money to the defendant for which he was
suing. This plea might therefore have the practical effect of
transforming a loan of money due on a formal contract into a real
contract, but this was confined to contracts contemplating a loan of
money. But by a constitution of the Emperor Diocletian (Her-
mogen. Cod. 1 ; Cod. Theod. 2, 27, 1 ; Cod. Just. 4, 30), if a written
acknowledgment of a debt was thus sued on, the exceptio non
numeratae pecuniae could only be pleaded within five years from
the date of the contract, which delay was reduced to two years by
Justinian, after which interval the cautio was accepted, if we are to
follow the statement of the law made in the Institutes, as incontro-
vertible, and not merely presumptive, proof that the money had been
advanced. After this interval, accordingly, Justinian regards the
written document as a formal contract and not simply as evidentiary.
If no written document accompanied a promise by stipulation to
336 QVIBVS MODIS OB. NASCVNTVR [m. §§ 92-96.
repay a debt, no length of time barred the defendant from pleading
the exceptio doli. If the plaintiff, instead of suing on the Stipulatio,
sued simply on a loan by the informal real contract of mutuum, the
defence of the defendant, though substantially the same, viz. that
he had never received the money, being a mere contradiction of
the intentio, would not appear in the formula in the shape of an
exceptio. In this case the burden of proof that the money had
been actually lent would naturally fall on the plaintiff. (For the
circumstances under which a defence took the form of exceptio
see 4 § 115.)
It may assist us in understanding the distinction of Formless and
Formal contracts, that is Verbal and Literal, if, before we quit this
subject, we cast a hasty glance at the corresponding institutions of
English law.
In the eye of the English law, contracts are either Simple (parol),
that is, enforceable only on proof of consideration, or Special, that
is, binding by the solemnity of their form. Special contracts are
either contracts under Seal or contracts of Eecord. A common
species of Deed, or written contract under seal, is the Bond or
Obligation, which, like Stipulatio, is used to secure the payment
of money or performance of any other act, and, like Stipulatio,
either binds the debtor alone or the debtor and sureties. It con-
sists of an obligatory part or penal clause binding the obligor to
pay a sum of money, and a condition added, that if he does some
particular act the obligation shall be void, but else shall remain in
full force.
Contracts of Eecord are either recognizances or Judgment debts.
A Recognizance is an acknowledgment before a court or magi-
strate that a man owes the King or a private plaintiff (as the case
may be) a certain sum of money, with a condition avoiding the
obligation to pay if he shall do some particular act, as, if he
shall appear at the assizes, keep the peace, pay a certain debt,
or the like. A Recognizance resembles Stipulation in its form,
being entered into by oral interrogation and answer, but differs
in that it can only be taken before a court or magistrate duly
authorized, whereas stipulatio was transacted between private
parties.
A Judgment debt, or debt due by the judgment of a court of
record, is sometimes the result of a judgment in an adverse suit,
but sometimes it is merely a form of written contract, and may be
entered into in various ways. A fictitious action is brought, and
the party to be bound either makes no reply, or fails to instruct his
attorney, or confesses the action and suffers judgment to be at once
entered up ; or the party to be bound consents to a judge's order
in. §§92-96.] VERBIS OBLIGATIO 337
authorizing the plaintiff to enter up judgment and issue execution
against him, either at once and unconditionally, or on a future day
conditionally on non-payment of whatever amount may be agreed
upon ; or the party to be bound gives a warrant of attorney, that
is, authority to an attorney to confess an action of debt or suffer
judgment to go by default, the warrant being accompanied by a
defeasance declaring it to be merely a security for payment of
a certain sum and interest, and providing that no execution shall
issue unless default in the payment shall have been made.
The conjunction of a penal clause and a condition avoiding it is
common to the judgment debt, recognisance, bond, and stipulatio
poenae nomine. The Roman Nexum, as we have stated, had appa-
rently the effect of a Judgment debt ; being a transaction per aes et
libram it could not itself be conditional.
§ 93. Why was Sponsio binding on Romans and not on strangers?
Possibly because originally it was an oath or adjuration of the
tutelary gods of Rome, who would not be an object of reverence to
a stranger.
§ 94. The obligation of an independent sovereign state to another
independent sovereign state does not exactly resemble the obligation
of one subject to another subject of the same sovereign or political
superior. If a contract between two subjects is broken, it is enforced
by the power of the common sovereign. But if a treaty between
two sovereigns is violated, there is, by hypothesis, no common
superior by whom it may be enforced. The treaties of sovereign
states give rise to moral obligations similar to those of individuals.
They may be binding in the forum of conscience or of heaven, but,
if these are disregarded, are not enforced by any earthly tribunal.
The moral obligation is not secured by any strictly legal sanction ;
and the sovereign whose treaty rights are violated can obtain no
redress except from the force of international opinion and his own
power of inflicting evil on the violator.
Or we may compare the relation of sovereign states to the relation
of individuals before the complete establishment of political society.
There is then sufficient intercourse to form a public opinion and
certain conceptions of rights and wrongs ; but not sufficient organi-
zation to dispense with the necessity of self-vindication or self-
defence. In such a state the redress of the individual for the harms
he suffered was by feud or private war. That such a state once
existed we know from the early history of our ancestors and their
Teutonic kinsmen. So the redress of sovereigns is war or public
feud. In the controversies of individuals the system of private war
was abolished in this country by the proclamation of i the king's
peace,' renewed at every coronation — the symbol of the consolidation
338 QVIBVS MODIS OB. NASCVNTVR [in. §§ 97-109.
of central authority. For the controversies of peoples no such
abrogation of warlike process seems possible.
Jus in the expression jus belli may perhaps signify not so much
right or law in the ordinary sense as sanction, or executive power,
or means of compulsion. That this was one of the many meanings
of the word appears from Ovid, who uses the following terms to
express a want of self-control : Nam desunt vires ad me mihi jusque
regendum. Amores, 2, 4.
The necessity of employing any consecrated terms in a stipulation
was abrogated by a constitution of Leo, dated the calends of
January, A. D. 469. Omnes stipulationes, etiamsi non sollemnibus
vel directis, sed quibuscunque verbis pro» consensu contrahentium
compositae sint, legibus cognitae suam habeant firmitatem, Cod.
8, 37, 10. 'Stipulations, though not in solemn formulas or direct
terms, in whatever words the agreement of the parties is expressed,
if otherwise legal, shall have binding force.'
Dotis dictio is not a contract, being simply a solemn binding pro-
mise of dos made by a woman, who is betrothed or married, or by
some person on her behalf, who is under an obligation to provide
her with dos. It is distinguished from dotis promissio, a promise
by stipulation to give dos, which any one might undertake. In later
law dotis dictio was obsolete, but by a constitution of the Emperor
Theodosius II any third person was made capable of binding himself
by a simple promise of dower without a stipulation, and this law
was adopted by the Emperor Justinian. 1 Cod. 5, 11, 6.
Jurata promissio liberti was the sworn promise of a freedman,
immediately' after his manumission, to render certain services
(operae) to his patron. It was usual to bind the conscience of
the slave by a similar promise before manumission ; but such a
promise had no legal operation. The right of a patron to the operae
of his freedman was put an end to by the capitis diminutio of
either patron or freedman, § 83, patronatus being assimilated to
agnatio.
§ 97. Si id quod da.ri stipu- § 97. If we stipulate that some-
lamur tale sit, ut dari non pos- thing is to be conveyed to us
sit, inutilis est stipulatio, uelut which cannot be, the stipulation
si quis hominem liberum quern is void ; for instance, if a man
seruum esse credebat, aut mor- stipulates for the conveyance of
tuum quern uiuum esse crede- a freeman whom he supposes to
bat, aut locum sacrum uel re- b« a slave» or of a <*ead slave
ligiosum quern putaba* humani %hom he, s,uPP°fsy ,to be ah7el °f
. ° . j • / 4- 7 4 „ of ground devoted to the celestial
luris esse, dari {st^pwletur Or infernal gods which he sup-
' ' ' ' poses to be subject to human
law.
.in. §§ 97-109.] DE INVTILIBVS STIPVLATIONIBVS 339
§ 97 a. Item si quis rem
I quae in rerum natura esse non
I potest, uelut hippocentaurum,)
I stipuletur, aeque inutilis est
j stipulatio. Inst. 1. c.
- § 98. Item si quis sub ea
/condicione stipuletur quae exis-
/tere non potest, ueluti si digito
/ caelum tetigerit, inutilis est
stipulate, sed legatum sub
inpossibili condicione relictum
nostri praeceptores proinde de-
beri putant, ac si sine con-
dicione relictum esset ; diuersae
scholae auctores nihilo minus
legatum inutile existimantqu am
stipulationem. et sane uix
idonea diuersitatis ratio reddi
potest. Inst. 3, 1 9, 1 1 .
i § 99. Praeterea inutilis est
fetipulatio, si quis ignorans rem
suam esse dari sibi earn stipu-
letur; quippe quod alicuius est,
id ei dari non potest.
' § 100. Denique inutilis est
talis stipulatio, si quis ita dari
Istipuletur POST MORTEM MEAM
DARI SPONDES; uel ita (POST
I MORTEM TV AM DARI SPONDES^',
Ualet autem, si quis ita dari
stipuletur CVM MOEIAE DARI
SPONDEsI ud ita} CVM MO-
RIERIS DARI SPONDES? id est
ut in nouissimum uitae tempus
stipulatoris aut promissoris ob-
ligatio conferatur. nam inele-
gans esse uisum est ab heredis
persona incipere obligationem.
rursum ita stipulari non pos-
SUmuS PRIDIE QVAM MORIAR,
aut PRIDIE QYAM MORIERIS
DARI SPONDES ? quia non potest
aliter intellegi ' pridie quam
aliquis morietur,' quam si mors
secuta sit ; rursus morte secuta
in praeteritum reducitur stipu-
§ 97 a. Or again if a man stipu-
lates for a thing incapable of ex-
isting, such as a hippocentaur, the
stipulation is void.
§ 98. An impossible condition,
that the promisee, for instance,
should touch the sky, makes the
stipulation void, although a legacy
with an impossible condition, ac-
cording to the authorities of my
school, has the same effect as if
no condition were annexed. Ac-
cording to the other school it is
as null and void as if it were a
stipulation, and in truth no satis-
factory reason can be alleged for
making a distinction.
§ 99. So when a person stipu-
lates by mistake that his own
property shall be conveyed to
himself, the stipulation is null
and void, for what already belongs
to a man, cannot be conveyed to
him.
§ 1 00. A stipulation to convey
after the death of the promisee
or promisor is invalid, but a sti-
pulation to convey at the death,
that is, at the last moment of the
life of the promisee or promisor,
is valid. For it has been held
anomalous to make the heir of
either of the contracting parties
the first subject of the obligation.
Again, a stipulation to convey on
the day before the death of the
promisee or promisor is invalid,
for the day before the death can-
not be ascertained till after death,
and after death the stipulation
has a retrospective effect, and
amounts to a promise to convey
to the promisee's heir, which is
void.
Z 2
340 QVIBVS MODIS OB. NASCVNTVR [in. §§ 97-109,
latio et quodammodo tails est
HEREDI MEO DARI SPONDES ?
quae sane inutilis est.
Inst. 3, 19, 13.
§ 101. Quaecumque de morte
diximus, eadem et de capitis
deminutione dicta intellegemus.
§ 102. Adhuc inutilis est
stipulatio, si quis ad id quod
interrogatus erit, non respon-
dent, ueluti si sestertia x a te
dari stipuler et tu sestertia v
promittas, aut si ego pure sti-
puler, tu sub condicione pro-
niittas. Inst. 3, 19, 5.
" §T03. Praeterea inutilis est
stipulatio, si ei dari stipulemur,
cuius iuri subiecti non sumus.
unde illud quaesitum est, si
quis sibi et ei cuius iuri sub-
iectus non est dari stipuletur,
in quantum ualeat stipulatio.
nostri praeceptores putant in
uniuersum ualere et proinde ei
soli qui stipulatus sit solidum
de&eri, atque si extranei noinen
non adiecisset. sed diuersae
scholae auctores dimidium ei de-
beri existimant, pro altera uero
parte inutilem esse stipulatio-
nem. Inst. 3, 19, 4.
103 a. Alia causa est |
solidum
— etiam
DARI SPONDES?
deberi et me | solum
Titijo — .
§ 104. Praeterea, inutilis est
stipulatio, si ab e o stipuler qui
iuri meo subiectus est, item si
is a me stipuletur. {se<i) seruus
quidem et qui in mancipio est
etfili&familias et quae in manu
est non solum ipsi, cuius iuri
subiecti subiectaeue sunt, obli-
gari non possunt, sed ne alii
quidem ulli. Inst. 3, 19, 6.
§ 101. What is said of death
must also be understood of capitis
deminutio.
§ 102. Another cause of nullity
is the want of correspondence
between the question and answer ;
if I stipulate, for instance, for ten
sestertia and you promise five, or
if you meet my absolute stipula-
tion by a conditional promise.
§ 103. No valid stipulation can
be made to convey a thing to a
third person to whose power the
stipulator is not subject, whence
the question has been mooted
to what extent a stipulation in
favour of the stipulator and such
a stranger to the contract is valid.
My school hold that it is valid for
the whole amount stipulated, and
that the stipulator is entitled to
the whole, just as if the stranger
had not been mentioned. The
other school hold that he is only
entitled to one moiety, and that
the stipulation is of no effect as
to the other.
§ 103 a. It is a different case
if you promise to convey some-
thing to me or Titius, for then
the whole is due to me, and I
alone can sue on the stipulation,
though the debt may be dis-
charged by payment to Titius.
§ 104. No valid stipulation can
be made between a person under
power an,d the person to whom he
is subject. In fact a slave, a person
in domestic bondage (mancipium),
a daughter of the family and a
wife subjected to the hand of a
husband, can incur an obligation
neither to the person in whose
power or mancipium they are,
nor to any other person.
in. §§ 97-109.] DE INVTILIBVS STIPVLATIONIBVS 341
§ 105. Mutura neque stipulari
neque promittere posse palam
est. idem etiam in surdo re-
ceptum est ; quia et is qui
stipulatur uerba promittentis,
et qui promittit uerba stipu-
lantis exaudire debet.
Inst. 3, 19, 7.
§ 106. Furiosua nullum ne-
gotium gerere potest, quia non
intellegit quid agat.
Inst. 3, 19, 8.
§ 107. Pupillus omne nego-
tium recte gerit, ut tamen,
sicubi tutoris auctoritas heces-
saria sit, adhibeatur (tutor),
ueluti si ipse obligetur ; nam
alium sibi obligare etiam sine
tutoris auctoritate potest.
Inst. 3,19,9.
§ 108. Idem iuris est in femi-
nis quae in tutela sunt.
§ 109. Sed quod diximus de
pupillo, utique de eo uerum est
qui iam aliquem intellectum
habet. nam infans et qui in-
fanti proximus est non multum
a furioso differt, quia huius
aetatis pupilli nullum intel-
lectum habent ; sed in his
pupillis propter utilitatem be-
nignior iuris interpretatio facta
est. Inst. 3, 19, 10.
§ 105. The dumb cannot stipu-
late or promise, nor can the deaf,
for the promisee in a stipulation
must hear the answer, and the
promisor must hear the question.
§ 106. A lunatic cannot enter
into any transaction because he
does not understand what he is
doing.
§ 107. A ward can enter into
any transaction provided that he
has his guai'dian's sanction when
necessary, as it is for his in-
curring an obligation for himself,
although not for his imposing an
obligation on another.
§ 108. The same rule applies
to women who are wards.
§ 109. But what we have said
about a pupil is of course only
true of one who has some under-
standing : for infants and those
who are bordering on infancy
do not differ much from insane
persons, not being capable of
judging for themselves ; never-
theless, when they will benefit
by the transaction, a more ac-
commodating interpretation is
put on the law.
Among the objects that could not be secured by stipulation, and
still less by any Formless contract, are Dispositions under the code
of Family law (the laws governing domestic relations) or the code
of Succession. E.g. no promise of marriage (sponsalia) was legally
binding — a striking contrast to the rule of English law. Nor do
we hear of any binding agreement to a future Emancipation, Adop-
tion, or Arrogation ; or for the principal acts relating to the law
of Succession, to the execution of a Will or to the aditio of an
inheritance. In all these solemn Dispositions the Roman legislator
deemed it expedient that the disposer should have an entire freedom
of choice at the moment of making the Disposition.
§ 98. This seems an appropriate place for the following remarks
342 QVIBVS MODIS OB. NASCVNTVR [in. §§ 97-109.
on the general nature of conditions. A Condition is an element
of Title ; it is a certain contingent occurrence or non-occurrence,
performance or non-performance, by arbitrary appointment con-
ferring on a certain person a certain right, or imposing on him
a certain duty. It may be denned, as the middle term (B) of a
syllogism of which the minor term (C) represents a person, and the
major term (A) a right or duty, and of which both the premisses
are contingent. It is the last feature that we shall first proceed to
consider.
The major premiss must be contingent ; it must be an arbitrary
determination that makes the right or duty (A) depend on the
given title (B) ; the nexus between the middle and major terms
must be solely the will of the testator or contractors, not the will
of the legislator ; the title must not be in its own nature the Neces-
sary presupposition of the right. E. g. in the following cases : the
institution of a person as heir, if he survive the testator, if he accept
the inheritance; the bequest of a legacy, if the heir accept the in-
heritance ; the promise of a dower, if the marriage is celebrated ; the
seeming condition is required by the law, and its expression is
superfluous : such an event, therefore, is not a genuine condition.
Again, the nexus between the minor and middle terms may be
either the will of the person entitled (conditio potestativa), Cod. 6,
51, 7, or chance (conditio casualis) ; but one way or other the
minor premiss must be contingent ; the fulfilment of the condition
must be neither Necessary nor Impossible : it must be a future and
uncertain contingency whether the title (B) shall be realized or ful-
filled in respect of a given person (C). The condition, accordingly,
must not be a past or present event, e. g. if Titius was consul last year,
if Titius is now consul ; such a fact is now certain and Necessary,
and any disposition contingent thereon is really unconditional.
The effect of an Impossible condition is different in Contracts
and Testamentary dispositions ; it invalidates contract ; whereas in
a testament it is deemed unwritten (pro non scripto habetur), and
the disposition is regarded as unconditional. This was the rule
that finally prevailed, Dig. 35, 1, 3. ' It has been finally decided
that impossible conditions to testamentary dispositions are mere
surplusage.' This was the doctrine of the Sabinians, and was
confirmed by Justinian, Inst. 2, 14, 10. Illegal and immoral con-
ditions followed the same rule as impossible conditions. The
question why Contracts and Wills were governed by different rules,
which Gaius admits to be obscure, may receive some light from the
following considerations. Testamentary dispositions in their nature
are acts of liberality on the part of the testator. Even when he
employs them as inducements to an illegal or immoral act, it is not
in. §§ 97-109.] DE INVTILIBVS STIPVLATIONIBVS 343
quite certain that the refusal to perform the act would have caused
him to deprive the person to whom the bequest is given of his
liberality. At all events, this person is himself innocent of un-
lawful intention, and the same cannot be said of the contractor who
is guilty of an agreement to violate the law. Accordingly, the law
aids the one but not the other; and the rule, once established for
immoral conditions, was extended to impossible conditions.
On this point the Trench code agrees with the Koman law. In
the Austrian code the Proculian doctrine is followed : i. e. testa-
mentary dispositions as well as contracts are invalidated by im-
moral or impossible conditions. The Prussian code, till it was
superseded by the German civil code, followed a middle course :
impossible conditions invalidated a testamentary disposition ; im-
moral conditions were deemed unwritten and the disposition con-
strued as unconditional. The German civil code does not lay down
any special rules as to the effect of impossible or immoral conditions
attached to testamentary dispositions, treating testamentary dis-
positions in the same way in this respect as other dispositions.
A disposition to which an immoral or unlawful disposition is
attached is void, whether it be a condition precedent or sub-
sequent. A disposition to which an impossible condition precedent
is attached is void : a disposition to which an impossible condition
subsequent is attached is looked upon as if no condition were
attached to it.
A Condition was not annexable to all dispositions. It was an-
nexable to all Testamentary dispositions: but among formal dis-
positions inter vivos the only ones to which it could be annexed
were Stipulations. A Condition could not be annexed to an In
jure cessio or surrender before the magistrate : Nulla legis actio
prodita est de futuro, Frag. Vat. 49. Nor to Mancipatio, nor to
Acceptilatio, nor to Expensilatio (Literal Obligation), nor to Cog-
nitoris datio. Sub conditione cognitor non recte datur, non magis
quam mancipatur, aut acceptum vel expensum fertur, Frag. Vat. 329.
Nor could it be annexed to magisterial Tutoris datio : Sub con-
ditione a praesidibus provinciarurn non posse dari tutorem placet,
et si datus sit nullius esse momenti dationem, Dig. 26, 1, 6, 1 : nor
to Tutoris auctoritas, Dig. 26, 8, 8 : nor to hereditatis aditio, nor
to servi optio : Actus legitimi qui non recipiunt diem vel condi-
tionem, veluti mancipatio, acceptilatio, hereditatis aditio, servi
optio, datio tutoris, in totum vitiantur per temporis vel conditionis
adjectionem, Dig. 50, 17, 77.
Later jurisprudence admitted the annexation of conditions to
the alienation of property by means of Tradition. Conditions are
Suspensive or Kesolutive. Tradition coupled with a Suspensive
344 QVIBVS MODIS OB. NASCVNTVR [in. §§ 97-109.
condition operates an immediate transfer of possession and a future
transfer of ownership contingent on, and contemporaneous with,
the fulfilment of the condition. Tradition, coupled with a Reso-
lutory condition, operates two transfers of ownership : an immediate
transfer of ownership and a subsequent retransfer of ownership,
contingent on, and contemporaneous with, the fulfilment of the
condition. The retransfer of ownership follows without any
retradition or reconveyance by the interim proprietor ; and the
remedy of the original proprietor is not condictio, implying the
necessity of reconveyance, but vindicatio, implying that he is
already reinvested with ownership. The justa causa or disposition
which accompanies the tradition and determines the transfer of
ownership (2 § 20) also limits the duration of the ownership so trans-
ferred. Such at least is the doctrine of the majority of jurists:
others hold that the fulfilment of the resolutive condition only
imposes on the transferree a personal obligation of reconveyance.
Conditions annexed to contracts have the following difference
from conditions annexed to testamentary dispositions and disposi-
tions translative of dominion. Conditions annexed to contract are
retroactive: the obligation determined by their fulfilment relates
backward and dates from the date of the contract. Conditions
annexed to legacy or to .alienation are not retroactive : the obliga-
tion or ownership thereby conferred only dates from the fulfilment
of the condition.
§§ 100-103. As to the rights conferred or obligations imposed by
a contract on third persons not parties to the contract Paulus lays
down the following principle : Quaecunque gerimus, cum ex nostro
contractu originem trahunt, nisi ex nostra persona obligationis
initium sumant, inanem actum nostrum efficiunt: et ideo neque
stipulari neque emere vendere contrahere, ut alter suo nomine recte
agat, possumus, Dig. 44, 7, 11, i.e. in every contract the right created
by the contract must primarily vest, if the contract is to be valid, in
the promisee himself; and the obligation in the promisor himself,
for Roman law did not, it must be remembered, admit the principle
of contractual agency. This rule is evidently not violated if the
promisee associates to himself his heir, i. e. contracts for some right
to himself and heir : Suae personae adjungere quis heredis personam
potest, Dig. 45, 1, 38, 14 : but it is violated if the promisee contracts
for some right to vest exclusively in his heir, or, as expressed in this
paragraph, for some performance post mortem suam. Such contracts
accordingly were void, whether they belonged to jus civile or the jus
gentium, § 158. This led to the introduction of an Adstipulator
when a person wished to stipulate something exclusively for the
benefit of his heir, § 117. When Justinian abrogated the rule and
in. §§97-109.] DE INVTILIBVS STIPVLATIONIB\7S 345
ordained that an act could be contracted to be performed either
before or after the death of either of the contractors, Cod. 4, 11, 1,
the Adstipulator became unnecessary.
The rule of Paulus would make a promise of payment to the
promisee and a stranger, § 103, void as to the latter, so that the
promisee would only take a moiety, the law being thus stated in
the corresponding passage of the Institutes, Inst. 3, 19, 4. But in
a formless contract of sale the Sabinian doctrine still prevailed.
Dig. 18, 1, 64.
The same rule applied to the passive obligation a contract imposed :
the debtor created by a contract could not be in the first instance
the heir of the promisor, § 158. One intelligible motive for pro-
hibiting obligations from taking effect on the death of the promisor
would be to prevent evasions of the testamentary laws restricting
the powers of testation. A testator who wished to leave a legacy
to a person who could not take under a will from want either of
Capacitas or of passive Testamentifactio, or a legacy beyond the
amount permitted by the lex Falcidia or some other law, would
enter into a Stipulation, binding his heir to pay a certain sum after
the death of the promisor. The promisee then could recover this
sum not as legatee but as creditor under the stipulation. That such
evasions were in fact attempted appears from Dig. 22, 3, 27. But this
opening of a door to fraudulent evasions is not what Gaius, § 100,
intends to express by 'Inelegance,' which means something not in
accordance or in harmony with legal principle, the principle in this
case being that a contract is confined in its operation to the parties
to it, and that the heir can only be entitled to the rights and liable
to the obligations of the deceased by way of succession. Justinian,
however, abolished the distinctions recorded in this paragraph, and
allowed the stipulation of an act to be performed either for the heir
of the promisee, or by the heir of the promisor, Inst. 3, 19, 13.
(§ 102. According to Dig. 45, 1, 1, 4 and 83, 3 the stipulation in this
case is not void, but good for the smaller amount. The Institutes of
Justinian (3, 19, 5), on the other hand, adopt the view of the law
taken by Gaius, perhaps inadvertently.)
A slave or filiusfamilias who stipulated a payment to himself
acquired a right for the master or paterfamilias. Except in these
relations, it was the rule that a man could not stipulate for a third
person. Payment, however, to a third party might be stipulated for,
so as to entitle the third party to receive it, Inst. 3, 19, 4, and such
payment might be secured by a penal clause, stipulating, in default
of performance, payment of a penal sum to the promisee, Inst. 1. c. 1 9.
The rule of the Civil law that a Formal contract by Stipulatio
could only be concluded between principals — between persons cove-
346 QVIBVS MODIS OB. NASCVNTVR [in. §§ 97-109.
nanting in their own names, was an impediment in the way of
commerce which was met, as we have already stated, by a double
use of a Consensual contract, which will presently be examined, the
contract of Agency (mandatum). An Agent or mandatary stipulated
in his own name with a third person, and then assigned his right
of action to his principal ; that is, gave his principal a mandate to
sue in his name, but on his own account (in rem suam), 2 § 38 : the
principal then sued and recovered on the stipulation as assignee of
the action, that is, as mandatary of his mandatary. In the latest
period the actual mandate of the action was unnecessary if an
intention to assign was shown : the praetor allowing the principal
in such cases to sue in his own name by an actio Utilis, i. e. by
a formula perhaps containing some kind of Fiction, Dig. 2, 14, 16
pr., Cod. 4, 10, 1, cf. Sohm, p. 443, n. 2. Nor in respect of Form-
less contracts, or contracts governed by Jus Gentium, was the
principle of contractual Agency more completely recognized, as
has sometimes been supposed. But if an Agent merely acted as
emissary (nuncius) and instrument (minister) of his principal, that
is, communicated the intention of an absent principal, the principal
was himself a party to the obligation and acquired an immediate
right against the other contractor and incurred a direct obligation
to him : he could sue him or be sued by him in an actio Directa.
See § 162, comm.
If it was desired to give a third person the right of suing on the
contract, it was necessary that the contractor should contract as
principal, and then assign his right of action to the third party, but
the latter was subject to the same defences, as could have been used
against the assignor, who was the contracting party. If he neglected
the precaution of making such assignment it followed that the third
party could not recover on such contract. Paulus, Dig. 44, 7, 11,
lays down this principle which we have already, § 100, noticed:
' Every disposition in which a person contracts as principal but
attempts to entitle a third person to sue as principal (i. e. attempts
to invest a third person with the rights of an immediate creditor)
is invalid : and neither by formal contract of stipulation, nor by
formless contract of purchase and sale, nor by any other contract in
which I am principal can I invest a third person with a right to
sue in his own name.' But by binding the promisor to pay a
penalty to the stipulator, if something was not rendered to the third
party, the object of the parties might be secured. Cf. Inst. 3, 19, 19.
Alteri stipulari, ut supra dictum est, nemo potest: inventae sunt
enim hujusmodi obligationes ad hoc, ut unusquisque adquirat quod
sua interest ; ceterum si alii detur, nihil interest stipulatoris. Plane
si quis velit hoc facere, poenam stipulari conveniet, ut, nisi ita
in. §§ 110-127.] ADSTIPVLATIO 347
factum sit, ut comprehension esset, committetur poenae stipulatio
etiam ei cujus nihil interest.
It is to be remembered too that the want of contractual agency
was to a great extent supplied by the rule that contractual rights
acquired by slaves or filiifamilias were acquired for their superior.
We have already mentioned, § 100, that in Justinian's legislation
a contractor could contract for a payment to or by a third person,
when that person was his own heir.
§§ 105, 106. For the same reasons as those given in the text, neither
deaf nor dumb persons could make, or be witnesses to, a manci-
patory will. Persons thus physically incapable, as well as lunatics,
might be represented for some purposes by curators. The contract
of a lunatic, it is to be noticed, is not voidable, as in English law,
but void, 'quia non intellegit quid agat.'
§ 109. The age of puberty, as we have seen, came to be fixed at
14 for males, 12 for females. Before this period the child was
called impubes : but the capacity of the impubes varied with his
age. Up to the age of 7 he was infans ; in the interval between 7
and 1 4 he was described either as infantiae proximus or as pubertati
proximus. According to some commentators the interval was equally
divided between these appellations, so that from 7 to 10-| a boy
was infantiae proximus, and from 10-| to 14 pubertati proximus.
According to Savigny these names only covered the space of a year
measured from each limit, so that from 7 to 8 a child was infanti
proximus, from 13 to 14 puberi proximus, and from 8 to 13 without
any distinctive appellation. Cf. 1, 142, comm.
§ 110. Possumus tamen ad id § 1 10. Although another person
quod stipulamur alium adhi- cannot stipulate for us, yet in our
bere, qu^ idem stipuletur; quern stipulations we can associate with
tiulgo adstipulatorem uocamus. ourselves another person who
stipulates for the same perform-
ance, and is called an adstipu-
lator.
§ 111. Et huic proinde actio §111. He can sue as well as
conpetit proindeque ei recte the stipulator, and payment to
soluitur ac nobis ; sed quidquid him discharges the debtor as well
consecutus erit, mandati iudicio as payment to the stipulator, but
nobis restituere cogetur. whatever he recovers, the action
of mandate compels him to hand
over to the stipulator.
§ 112. Ceterum potest etiam § 112. The adstipulator need
alus uerbis uti adstipulator, not employ the same terms as
quam quibus nos usi sum us. the stipulator ; if the one says,
itaque si uerbi gratia ego ita 'Art thou sponsor for the con-
stipulatus sim DARI SPONDES?, veyance?' the adstipulator may
ille sic adstipulari potest IDEM say, ' Dost thou for the same
348 QVIBVS MODIS OB. NASCVNTVR [in. §§ 110-127.
FIDE TVA PROMITTIS ? uel IDEM
FIDEIVBES 1 uel contra.
§ 113. Item minus adstipu-
lari potest, plus non potest.
itaque si ego sestertia x stipu-
latus sim, ille sestertia v stipu-
lari potest ; contra uero plus
non potest. item si ego pure
stipulatus sim, ille sub con-
el ici one stipulari potest ; contra
uero non potest. non solum
autem in quantitate, sed etiam
in ternpore minus et plus intel-
legitur; plus est enim statim
aliquid dare, minus est p®s£
tempus dare.
§ 114. In hoc autem iure
quaedam singular! iure obser-
uantur. nam adstipulatoris he-
res non habet actionem. item
seruus adstipulando nihil agit,
quamuis ex ceteris omnibus
causis stipulatione domino ad-
quirat. idem de eo qui in man-
cipio est magis placuit ; nam et
is serui loco est. is autem qui
in potestate patris est agit ali-
quid, sed parenti non adquirit,
quamuis ex omnibus ceteris
causis stipulando ei adquirat.
ac ne ipsi quidem aliter actio
cor? petit, quam si sine capitis
deminutione exierit de potestate
parentis, ueluti morte eius aut
quod ipse flamen Dialis inaugu-
ratus est. eadem de filia fami-
lias et quae in manu est dicta
intellegemus.
§ 115. Pro eo quoque qui
promittit solent alii obligari ;
quorum alios sponsores, alios
fidepromissores, alios fideius-
sores appellamus.
Inst. 3. 20 pr.
§ 116. Sponsor ita interro-
gatur IDJEJVIDARI SPONDES? fide-
promissor <^a) IDEM FIDE-
pledge thy credit ? ' or, ' Dost
thou for the same bid me trust
thee ? ' or vice versa.
§ 113. He may contract for
less than the stipulator, but not
for more. Thus, if I stipulate
for ten sestertia he may stipulate
for five, or if I stipulate abso-
lutely he may stipulate condi-
tionally, but not vice versa.
More and less is to be under-
stood of time as well as of
quantity, immediate payment
being more, and future payment
being less.
§ 114. In this institution there
are some exceptional rules. The
heir of the adstipulator can-
not sue ; a slave cannot be ad-
stipulator, thpugh in any other
circumstance his stipulation ac-
quires a right for his master;
moreover it is the prevalent
opinion that a person in domestic
bondage cannot be adstipulator,
because he is likened to a slave ;
a son in the power of his father
can be adstipulator, but does not
acquire a right for his father, as
in all other stipulations, and he
himself has no right of action
until, without capitis diminutio,
he ceases to be subject to his
father, as by his father's death,
or by being inaugurated priest of
Jupiter. The same is true of a
filiafamilias and a wife in the
manus of her husband.
§ 115. For the promisor, simi-
larly, other persons are bound,
who are called sponsors or fide-
promissors or fidejussors.
§ 1 1 6. A sponsor is thus inter-
rogated : ' Art thou for the same
payment sponsor ? ' a fidepromis-
in. §§ 110-127.]
ADPROMISSIO
349
PROMITTIS ? fideiussor ita IDEM
FIDE TVA ESSE IVBES 1 uide-
bimus [de his] autem, quo
nomine possint proprie appel-
lari, qui ita interrogantur IDEM
DABIS? IDEM PROMITTIS ? IDEM
FACIES 1
§ 117. Sponsores quidem et
fidepromissores et fideiussores
saepe solemus accipere, dum
curamus, ut diligentius nobis
cautum sit ; adstipulatorem
uero fere tune solum adhibemus,
cum ita stipu]amur, ut aliquid
post mortem nostram detur.
( ) stipulando nihil agimus,
adhibetur a<istipulator, ut is
post mortem nostram agat ; qui
si quid fuerit consecutus, de
xestituendo eo niandati iudicio
heredi [meo] tenetur.
§ 118. Sponsoris uero et
fidepromissoris siinilis condicio
(est), fideiussoris ualde dis-
simiiis.
§ 119. Nam illi quidem nullis
obligationibus accedere possunt
nisi uerborum, (quamuis inter-
dum ipse qui promiserit non
fuerit obligatus, uelut si mulier
aut pupillus sine tutoris aucto-
ritate aut quilibet pos£ mortem
suam dari promiserit. at illud
quaeritur, si seruus aut pere-
grinus spoponderit, an pro eo
sponsor au£ fidepromissor obli-
getur). Inst. 3,20,1.
§ 119 a. Fideiussor uero om-
nibus obligationibus, id est siue
re siue uerbis siue litteris siue
consensu contractae fuerint ob-
ligationes, adici potest. ac ne
illud quidem interest, utrum
ciuilis aw naturalis obligatio sit
sor thus: 'Dost thou for the
same pledge thy credit (fidei-pro-
mittis)?' a fidejussor thus : 'Dost
thou the same guarantee (fide tua
jubes) ? ' We shall have to con-
sider the question what is the
proper name for those who are
thus interrogated : ' Wilt thou
convey the same ? Dost thou pro-
mise the same? Wilt thou do
the same ? '
§ 117. Sponsors and fidepro-
missors and fidejussors are often
employed to provide additional
security for a debt ; an adstipu-
lator is generally only employed
by us to secure payment after our
death. Our own stipulation for
this purpose is void, and therefore
we associate with ourselves an
adstipulator, in order that he
may sue on the contract after
our death, but he is compelled
by an action of mandate to hand
over to our heir whatever he
recovers.
§ 1 1 8. The rules which govern
the sponsor and fidepromissor are
similar, and very unlike those
which govern the fidejussor.
§ 1 1 9. For the former are acces-
sory to none but verbal contracts,
and are sometimes even liable
when the principal promisor him-
self is not so, as, for instance,
when a woman or ward contracts
without her guardian's sanction,
or when a person promises a pay-
ment after his own death. But
it is a moot question when a slave
or alien promises by the term
spondeo, whether his sponsor
or fidepromissor is effectively
bound.
§ 1 1 9 a. A fidejussor, on the other
hand, may be accessory to any
obligations, whether real, verbal,
literal, or consensual, and whether
civil or natural. So that he may
even be bound for the obligation
of a slave either to a stranger or
350 QVIBVS MODIS OB. NASCVNTVB, [in. §§ 110-127.
cui adiciatur ; adeo quidem, ut
pro seruo quoque obligetur, siue
extraneus sit qui a seruo fide-
iussorem accipiorf, siue ipse do-
minus in id quod sibi debeatur.
§ 120. Praeterea sponsoris et
fidepromissoris heres non tene-
tur, nisi si de peregrino fide-
promissore quaeramus, et alio
iure ciuitas eius utatur. fide-
iussoris autem etiam heres tene-
tur. Inst. 3, 20, 2.
§ 121. Item sponsor et fide-
promissor lege Furia biennio
liberantur, et quotquot erunt
numero eo tempore, quo pecunia
peti potest, in tot partes didu-
citur inter eos obligatio et
singuli (m) uiriles partes obli-
grantur. fideiussores uero per-
petuo tenentur, et quotquot
erunt numero, singuli in soli-
dum obligantur. it'aque liberum
est creditori a quo uelit solidum
petere. sed nunc ex epistula
diui Hadrmm conpellitur credi-
tor a singulis qui modo soluendo
sint paries petere. eo igitur
distat haec epistula a lege Furia,
quod si quis ex sponsoribus aut
fidepromissoribus soluendo non
sit, hoc onus ad (ceteros non
pertinet j sed ex fideiussoribus
etsi unus tantum soluendo sit,
ad hunc onus) ceterorum quo-
que pertinet. Inst. 3, 20, 4.
§ 121 a. Sed cum lex Furia
tantum in Italia locum habeat,
euenit ut in ceter^s prouinciis
sponsores quoque et fidepromis-
sores proinde ac fideiussores
£>erpetuo teneantur et singuli
in solidum obligentur, nisi ex
to his own master ; and this is
the case whether it is a stranger
who accepts a fidejussor for the
slave, or whether it is the master
himself who does so for a debt
due from his slave to him.
§ 120. Again, the heir of the
sponsor or fidepromissor is not
bound by the guaranty, unless
it is the heir of an alien fide-
promissor in whose city (civitas)
such a rule prevails ; but the fide-
jussor's heir is always bound.
§ 121. Again, a sponsor and
fidepromissor, by the lex Furia,
at the end of two years are dis-
charged of obligation, and what-
ever is the number of these kinds
of sureties at the time when pay-
ment of the debt is due, the
total obligation is divided into
as many parts ; and each surety
is only liable for a single part.
Fidejussors, on the other hand,
are liable for ever, and, however
many of them there are, each is
liable for the whole amount of
the debt, the creditor being thus
entitled to sue whichever he
chooses for the whole. But now
by the letter of Hadrian of sacred
memory he can only recover from
each of the fidejussors, who are
solvent at the time an aliquot
part of the debt. Thus the letter
of Hadrian of sacred memory
differs from the lex Furia in this
respect, that the insolvency of one
sponsor or fidepromissor does not
increase the liability of the re-
mainder, whereas if only one of
several fidejussors is solvent, he
has to bear the whole burden.
§ 121 a. But as the lex Furia
only applies to Italy, it follows
that in the provinces, sponsors
and fidepromissors, like fidejus-
sors, are liable for ever, and each
would be liable for the whole
amount, unless they are also
in. §§110-127.]
ADPROMISSIO
351
epistula diui Hadrian! hi quo-
que adiuuentfur in parte.
§ 122. Praeterea inter spon-
sores et fidepromissores lex
Appuleia quandam societatem
introduxit. nam si quis horum
plus sua portione soluerit, de
eo quod amplius dederit ad-
uersus ceteros actiones con-
stituit. quae lex ante legem
Furiam lata est, quo tempore
in solidum obligabantur. unde
quaeritur, an post legem Furiain
adhuc legis Appuleiae bene-
ficiura supersit. et utique extra
Italiam superest. nam lex qui-
dem Furia tantum in Italia
ualet, Appuleia uero etiam in
ceteris prouinciis. sed an etiam
(in) Italia beneficium legis
Appuleiae supersit, ualde quae-
ritur. ad fideiussores autem lex
Appuleia non pertinet. itaque
si creditor ab uno totum ccwse-
cutus fuerit, huius soKus detri-
mentum eiit, scilicet si is pro
quo fideiussit soluendo non sit.
sed ut ex supra dictis apparet,
is a quo creditor totum petit
poterit ex epistula diui Hadrian!
desiderare, ut pro parte in se
detur actio. Inst. 3, 20, 4.
§ 123. Praeterea lege Cicereia
cautum est, ut is, qui sponsores
aut fidepromissores accipiat,
praedica£ palam et declaret, et
de qua re satis accipiat et quot
sponsores aut fidepromissores
in earn obligationem accepturus
sit ; et nisi praedixerit, permit-
titur sponsoribus et fidepromis-
soribus intra diem xxx prae-
iudicium postulare, quo quae-
ratur, an ex ea lege praedictum
sit ; et si iudicatum fuerit prae-
dictum non esse, liberantur.
qua lege fideiussorum mentio
nulla fit. sed in usu est, etiam
partly relieved by the letter of
Hadrian.
§ 1 22. Moreover, between spon-
sors and fidepromissors the lex
Appuleia introduced a sort of
partnership, for under this law
any one of them who has paid
more than his share is given an
action to recover the excess from
the others. The lex Appuleia
was passed before the lex Furia,
at a time when each sponsor and
fidepromissor was liable for the
whole amount ; and hence it is
questioned whether, since the lex
Furia was passed, the benefit of
the lex Appuleia still exists.
Outside Italy it undoubtedly
does ; for the lex Furia is only in
force in Italy, while the lex Ap-
puleia extends also to the remain-
ing provinces ; but whether the
benefit of the lex still continues
in Italy is much disputed. Fide-
jussors are not governed by the
lex Appuleia ; accordingly, if one
fidejussor pay the whole amount,
he alone suffers by the insolvency
of the principal ; however, as was
said above, a fidejussor sued for
the whole amount may by the
letter of Hadrian, if he chooses,
require the claim to be reduced
to his ratable portion.
§ 123. Further, the lex Cicereia
provides that a creditor who
obtains the guaranty of sponsors
and fidepromissors shall pre-
viously announce and declare to
them the amount of the debt to
be guaranteed and the number
of sponsors or fidepromissors by
whom it is to be guaranteed ; and
in the absence of such declaration
the sponsors or fidepromissors
are permitted within thirty days
to demand a preliminary trial of
the issue (praejudicium), whether
the requisite declaration was
made ; and on judgment that it
was not made they are discharged
352 QVIBVS MODIS OB. NASCVNTVR [in. §§ 110-127.
si fideiussores accipiamus, prae-
dicere.
§ 124. Sed beneficium legis
Corneliae omnibus commune
est. qua lege idem pro eodem
apud eundem eodem anno ueta-
tur in ampliorem summam obli-
gari creditae pecuniae quam in
xx milia. et quamuis sponsores
uel fidepromissores in amplam
pecuniam, ueluti si sestertium
c miliuui (se obligauerint, ta-
men dumtaxat xx tenentury.
pecuniarn autem creditam dici-
mus non solum earn, quam
credendi causa damus, sed om-
nem, quam turn c,um contrahitur
obligatio cerium est debitum
iri, id est (quae) sine ulla
condicione deducitur in obliga-
tionem. itaque et ea pecunia,
quam in diem certum dari stipu-
lamur, eodem numero est, quia
certum est earn debititmm, licet
post tempus petatur. appella-
tione autem pecuniae omnes res
in ea lege significantur. itaque
si uinum uel frumentum aui si
fundum uel hominem stipule-
mur, haec lex obseruanda est.
§ 125. Ex quibusdam tamen
causis permittit ea lex in in-
finitum satis accipere, ueluti si
dotis nomine, uel eius quod ex
testamento tibi debeatur, ant
iussu iudicis satis accipiatur.
et adhuc lege (lulia de) uice-
sima hereditatium cauetur, ut
ad eas satisdationes, quae ex ea
lege proponuntur, lex Cornelia
non pertineat.
§ 126. In eo guoque iure par
condicio est omnium, sponsorum
fidepromissorum fideiussorwm,
quod ita obligari non possunt,
ut plus debeant, quam debet is
of liability. The law makes no
mention of ficlejussors, but it is
usual in a guaranty by fidejussors
to make a similar declaration.
§ 124. But the benefit of the
lex Cornelia is available for all
sureties, which forbids the same
person to be surety for the same
debtor to the same creditor in
the same year for more than
twenty thousand sesterces of ere-
dita pecunia ; and if a sponsor or
fidepromissor guarantees a larger
sum, for instance, one hundred
thousand sesterces, he can only
be condemned in twenty thou-
sand sesterces. Pecunia credita
for purposes of the statute is
said to include, besides a pre-
sent loan, everything which at
the time of entering into the
suretyship is certain to be due,
that is, which depends on no
contingency. Accordingly, it in-
cludes money stipulated to be
paid on a future day ; because it
is certain that such money will
be due, although an action to re-
cover it cannot be brought till
a future time. But pecunia in this
law includes everything, so that,
if we stipulate for the conveyance
of wine, or corn, or land, or a
slave, the lex Cornelia applies.
§ 125. In some circumstances,
however, the law permits a surety
to be bound for an indefinite
amount, as security for dower,
for instance, or for that which is
due under a will, or by judicial
order. Also the lex Julia, im-
posing a duty of one twentieth
on testamentary successions, pro-
vides that the securities therein
required shall be excepted from
the scope of the lex Cornelia.
§ 126. The rights of sponsors,
fidepromissors, and fidejussors are
also equal in respect of the rule
that they cannot be bound for
more than their principal. They
in. §§ 110-127.] ADSTIPVLATIO— ADPRQMISSIO 353
pro quo obligantur. at ex di- may, however, be bound for less,
uerso ut minus debeant, obligari just as the adstipulator may stipu-
possunt, sicut in adstipulatoris late for less. For their obligation,
persona diximus. nam ut ad- like that of the adstipulator, is an
stipulatoris, ita et horum obli- accessory of the principal obliga-
gatio accessio est principalis tion> and the accessory cannot be
obligations, nee plus in acces- greater than the principal,
sione esse potest quam in prin-
cipali re. Inst. 3, 20, 5.
§ 127. In eo quoque par om- § 127. They further resemble
nium causa est, quod si quid jn this, that whoever pays for the
pro reo soluerint, eius recipe- principal can recover the amount
randi causa habewt cum eo from him by action of mandate,
mandati indicium, et hoc am- Sponsors by the lex Publilia have
plius sponsores ex lege Publilia an additional remedy, being able,
propriam habent actionem in unless reimbursed in six months,
duplum, quae appellatur de- to recover twice the sum ad-
pensi. Inst. 3 20 6. vanced by the action on money
paid by a sponsor.
§ 1 10. At the corresponding point of his Institutes (3, 16) Justinian
introduces the mention of COBEEALITY (et stipulandi et promittendi
duo pluresve rei fieri possunt), and it may be expedient to examine
the nature of Correality before we embark on the consideration of
the various forms of Guaranty.
Correality, the multiplication of creditores (plures rei credendi) or
debitores (plures rei debendi) in a single obligation without a corre-
sponding division of the Object of the right or obligation, was an
institution of Eoman law in favour of creditors ; whereby, excep-
tionally and usually in virtue of a special agreement, each creditor
was severally entitled to recover the whole (solidum) object of the
obligation from a common debitor, or each debitor was severally liable
to pay the whole object of the obligation to a common creditor.
The ordinary rule, to which Correality forms an exception, is that
when there are many creditores or many debitores in an obligation,
the Object of the obligation is correspondingly divided ; so that each
creditor is only entitled to recover a proportional fraction of the
advantage and each debitor is only bound to bear a proportional
fraction of the burden. In Correality each creditor is severally
entitled to receive, and each debtor is severally bound to discharge,
the whole Object of the obligation. By the ordinary rule, the
creditors would be only jointly entitled to receive the whole object ;
and this the debtors would be only jointly bound to discharge ; each
creditor would be severally entitled to receive only a ratable part of
the Object of the obligation, and a ratable part of the Object is
all that each debtor would be severally bound to discharge. By
354 DE OBLIGATIONIBVS [in. §§ 110-127.
having a number of correal creditores, each entitled to entire per-
formance, a debt could be more readily enforced, e. g. by adstipulatio.
By having a number of correal debitores, each liable for entire perfor-
mance, as if he were sole debitor, a creditor was rendered more secure.
Correality may originate in various modes :
(a) Contract, whether Formal or Formless, Dig. 45, 2, 9, in which
there are several promisors or several promisees. The usual origin
of Correality was Verbal contract or Stipulation.
(6) Testament : e. g. when a testator charges several co-heirs
alternatively with the payment of a legacy.
(c) Noxal liability of co-owners : e. g. when the co-proprietors of
a slave are liable for a noxal action for some mischief that he has
committed.
(d) The relation of filiusfamilias to paterfamilias, or of free agent to
principal, when the superior (father, or principal) is liable to an actio
adjecticiae qualitatis (actio de peculio, de in rem verso, quod jussu,
institoria, exercitoria, 4 § 69) for the obligation of the inferior (son,
or agent), the inferior himself being directly liable, and the creditor
can elect which he will sue.
Correality not only as denoting total or integral liability on the
part of the debitor, and total or integral claim on the part of the
creditor, furnishes a contrast to partial or fractional (in partem, pro
rata) liability or claim ; but must also be distinguished from another
relation of co-debtors and co-creditors to which it is much more
nearly akin, namely SOLIDARITY. Correality and Solidarity agree
in this, that in both of them every creditor is severally entitled to
receive entire performance of the obligation, and every debitor is
bound to discharge the entire liability: but differ in this, that
whereas Correality implies the unity or identity of the obligation
by which the co-creditors are entitled or the co-debtors are bound ;
Solidarity implies that they are entitled or bound by a plurality or
diversity of obligations.
Solidarity originates in various modes :
(a) Common delict, or other unlawful act, when several co-
delinquents incur a liability to indemnification.
(6) Co-guardianship, when one of the co-guardians has injured
the ward by his negligence.
(c) Some kinds of contract in which there are several promisors
but no special agreement to create Correality ; e. g. where there are
joint borrowers, hirers, agents, depositaries.
(d) Guaranty by the form of mandate called Mandatum qualifi-
catum, §§ 155-162, comm. ; or arising from a simple promise to pay
the debt of another, called Constitutum debiti alieni, which, though
originally a mere pact, came to be enforced by the praetor.
in. §§ 110-127.] ADSTIPVLATIO— ADPROMISSIO 355
Both Correality and Solidarity, as implying liability for entire but
alternative performance, lie in the mean between two extremes : on
the one side, divided or partial (pro rata) liability ; and on the other
side, the multiple or cumulative liability, generated by delicts that
give rise to actions for penalties. E. g. if several persons combine
to commit a theft they are all severally liable to the actio furti for
the whole penalty, and payment by one does not discharge his
fellow delinquents: or if a person is guilty of an outrage (injuria)
which wounds the honour of several, they are all creditors for the
penalty, and recovery by one does not extinguish the claims of the
rest, 3 § 221. Where the actions on account of an illegal act are
purely indemnificatory, as the actions brought on account of theft
for damages — condictio furtiva — or on account of Metus, Dolus,
Noxa, Vis, there, as we have already stated, the relation of Solidarity
subsists between the co-delinquents, and satisfaction by one ex-
tinguishes the obligation of the rest.
The differences between Correality and Solidarity are principally two :
1. In Correality the right of action against the remaining eo-
debtors or by the remaining co-creditors was extinguished by joinder
of issue in an action (litis contestatio) against or by one of the
parties : in Solidarity the right of action was only extinguished
by complete payment or satisfaction (solutio). Electo reo principali
fidejussor vel heres ejus liberatur : non idem in mandatoribus obser-
vatur, Paulus 2, 17, 16.
It was possible to avoid the consumption or extinction of the
right of action against the surety that was operated by suing the
principal by so shaping the stipulatio of ndejussio as not to produce
Correality, Dig. 45, 1, 116. But at a later period the extinction of
right to sue by litis contestatio was abandoned : and Justinian
expressly enacted that in Correality as well as in Solidarity only
actual satisfaction of a claim should operate a consumption of the
right of action. Justinian's ordinance is introduced into the Digest
by means of a bold interpolation : Cum utro velit Seius aget, ut, si
cum uno actum sit et solutum, alter liberetur. Pomponius, Dig. 30,
1, 8, 1 ; Cod. 8, 40, 28.
2. A second difference between Correality and Solidarity consists
in the fact that in Solidarity the guarantor who pays the whole has
regressus against his co-guarantors, that is to say, has a power
of recovering from them contribution of their share of the debt:
whereas the Correal debtor who pays has no regressus or right to
contribution. (I have here followed Vangerow : Savigny attempts
to prove, but apparently without success, that regressus is an
incident of Correality.) Where, however, the Solidarity is the effect
of co-delinquency (No. a. above) the delinquent who pays has no
A a a
356 DE OBLIGATIONIBVS [m.§§ 110-127.
regressus. Another important characteristic of a Correal obligation
is that formal discharge (acceptilatio) by one of the Correal creditors
entirely extinguishes the Correal debt so that none of the other
Correi can sue for it. Cf. § 2 1 5. (On the subject of Correality and
Solidarity and for an account of the literature relating to these joint
and several forms of obligation, see Sohm, § 74.)
After this preliminary consideration of the nature of Correality
we are in a position to examine the nature of Guaranty or Surety-
ship, and to fix the relation of fidejussio, one of the latest develop-
ments of Suretyship, to other cognate institutions of Roman
jurisprudence.
Fidejussio is a species of INTEKCESSIO ; and accordingly the above-
mentioned object requires us to examine the nature and subdivisions
of Intercessio.
Intercession is the assumption of liability for the debt of another
person by contract with his creditor. For instance, when a person
is hesitating whether he shall accept an inheritance because he has
doubts whether it is solvent, that is, whether the assets exceed the
liabilities, to induce him to accept it by a general promise of indemni-
fication is not Intercession, because here there is no contract with
a creditor on account of a debt owed to him by a third party : but if
the ground of his hesitation is a suspicion that the debtors to the
inheritance are insolvent, to induce him to accept the inheritance by
a promise to make good what he fails to recover from the debtors is
Intercession, for here is a contract with a creditor on account of the
debt of a third party.
Intercession is either (A) Privative or (B) Cumulative.
A. Privative Intercession is the substitution of one obligation
for another.
(1) Substitution for an actually pre-exis tent debt involves NOVATION,
i. e. the extinction of such preceding debt, and is generally called by
civilians EXPROMISSIO, though the term is not merely used in our
sources in this restricted sense. Cf. Koby, 2, p. 49, n. 1. Expromission,
the discharge of a debtor by taking his place in relation to the creditor,
may be considered as including Defensio, the defence of an absent
debtor in a suit instituted by the creditor ; for then the volunteer de-
fendant becomes liable to condemnation in place of the original debtor :
Suscipit enim in se alienam obligationem, quippe cum ex hac re subeat
condemnationem, Dig. 16, 1, 2, 5, Ad senatusconsultum Velleianum.
(2) Substitution, not for an actually pre-existent obligation which
is novated, but for an obligation which would have to be incurred by
another person if the present obligation were not assumed, is called
INTEKVENTIO. Si, quum essem tecum contracturus, mulier intervenerit
ut cum ipsa potius contraham, videtur intercessisse, Dig. 16, 1, 8, 14.
in. §§110-127.] ADSTIPVLATIO— ADPROMISSIO 857
B. Cumulative Intercession, or the addition of an obligation to
an obligation, is either Partial or Total, according as either part or
the whole of the object of the first obligation is the object of the
second or additional obligation.
(3) Of Partial intercessors we find an example within the limits
of Italy, in SPONSORS and Fidepromissors under the operation of the
lex Furia. By this law the liability of each sponsor was in inverse
ratio to their number, § 121. Whether an Italian Sponsor who had
not availed himself of the limitation of his liability under the lex
Furia was entitled to Kegressus under the older lex Appuleia, was
a matter of controversy, ibid.
Total Intercession is divided, according as several debtors are
bound by one single obligation or several distinct, though similar,
obligations, into two classes, Correality and Solidarity, terms which
have been explained above.
Correality is subdivided into two classes, according as all the
debitores are equally principals and originally interested, or some are
principal and others- only subsidiary or accessory. But in respect of
the right of suing or liability to be sued, the accessory, e. g. the fide-
jussor before the beneficium excussionis or ordinis was allowed him,
may be in the same position as the principal.
Correality in which all the debtors are interested as principals
has no specific name. As Intercession has been defined to be the
assumption of an alien debt (aliena obligatio), this Correality is not
a species of Intercession.
(4) Correality in which one debtor is principal and others are
accessory is instanced in FIDEJUSSIO. There is not only Correality
between the principal and each Fidejussor, but also between the
several Fidejussors. This is denied by Savigny, Law of Obligations,
§ 25, who asserts that though there is Correality between the
principal and each Fidejussor there is none between the several
Fidejussors : but Vangerow truly observes, § 573, that if the obliga-
tion of each Fidejussor is identical with the obligation of the
principal it follows, by the fundamental axiom of syllogism, that
the obligations of the several Fidejussors are identical with one
another : in other words, that there is Correality between the several
Fidejussors. Fidejussors have Beneficium divisionis by the epistle
of Hadrian, § 121, Beneficium excussionis by Novella 4 of Justinian,
and Beneficium cedendarum actionum. If he neglected to avail
himself of these, a Fidejussor, like other correal debtors, had no
regressus against his co-fidejussors, Dig. 46, 1, 39.
Correality is again instanced in the Sponsors and Fidepromissors
of the provinces external to Italy under the operation of the lex
Appuleia. Unlike other correal debtors they had by this statute
358 DE OBLIGATIONIBVS [in. §§ 110-127.
Eegressus by means of an action analogous to that between partners,
§ 122 ; though like Fidejussors, they also had Beneficium divisionis
under the constitution of Hadrian, § 121.
(5) Solidary Intercession is exemplified by the Mandator in the
contract called MANDATUM QUALIFICATUM. Here a lender gives credit
to a borrower in reliance on the representations of the mandator,
§ 156, who thus is a guarantor of the borrower's solvency: when
there are several such guarantors, their liability is solidary.
(6) Other Solidary Intercessors are those informally undertaking
to pay the debt of another in CONSTITUTUM DEBITI ALIENI. Both the
Mandator and the Constituens have Beneficium divisionis, Cod. 4,
18, 3, and Benefieium exeussionis, Novella 4.
§ 114. The peculiarity of the rules respecting the adstipulator
arises from the fact that he was a mandatary, agent, or trustee, the
repositary of a special personal confidence. Hence his rights did
not pass to his heres nor to his paterfamilias. Ordinary rules,
however, obtained so far, that he could not sue so long as he
remained a filiusfamilias, nor after his rights had been extinguished
by a capitis diminutio.
The principal function of the Adstipulator and one function of
the Adpromissor (the chief function of the latter of course was
suretyship) seems to have been to maintain or defend the action on
behalf of the principal, i.e. the representation of the principal as
plaintiff or defendant in a suit at a period when the doctrine of
Agency was still undeveloped.
We must suppose a time when the Cognitor and Procurator,
whose appointment as described, 4 § 83, was such a simple matter,
were institutions not yet invented, which was the case in the period
of Statute-process (legis actio), concerning which we are told : Nemo
alieno nomine lege agere potest, Dig. 50, 17, 123 ; and when, never-
theless, circumstances often prevented a principal from litigating in
person. In questions relating to ownership he might in early times
get over the difficulty and practically employ an agent by fiduciary
mancipation of the property in dispute to a third person, who would
then litigate with the adversary in the rights of his auctor, or the
person from whom he deduced his title. But in questions of Obliga-
tion this course was not open, for Obligation was not thus transferable.
Novation might effect the purpose, 2 § 38 : but Novation required
the concurrence of the debtor or adversary : and Cession or Procura-
tion, 2 § 39, we have assumed to be as yet uninvented. At this
period, then, the only remaining available representative in a suit
concerning contractual obligation was a person who had been con-
cerned, though merely as an accessory, § 126, in the original obliga-
tion. Ihering, § 56. When the development of the law of mandate
in. §§110-127.] ADPROMISSIO 359
led to the frequent appointment of a procurator, the adstipulator
ceased to be necessary except for securing performance of an act
after the death of the principal promisee, § 117. He ceased to be
necessary even for this purpose when a stipulation for an act after
the death of the stipulant was decided to be valid, and accordingly
the adstipulator has disappeared from the legislation of Justinian.
§ 1 1 5. The adpromissor at different epochs of the law appears as
sponsor, fidepromissor, fidejussor. A sponsor could only intervene
when both parties were Koman citizens, a fidepromissor was used
when either party was a peregrinus, § 120. There is a striking
parallelism between the rules relating to a sponsor or fidepromissor
and those relating to an adstipulator. The obligation does not pass
to the heres, and the sponsor and fidepromissor can only be adjuncts
to a stipulation, the fidejussor may be employed to guarantee any
obligation. The stipulation of the sponsor or fidepromissor may be
valid when the stipulation of the principal, though creating naturalis
obligatio, is invalid civiliter.
§ 121. The lex Furia discharging the sponsor and fidepromissor
of liability in two years and limiting the liability of each to a
proportionate part, is supposed to have been enacted B.C. 95.
The epistle of Hadrian (A.D. 117-138) left the fidejussor liable
originally (ipso jure) to the whole debt, with a counteractive right
(exceptio) to call on the other solvent sureties to pay their share of
the debt, enforced by a clause in the formula, of which the following
passage appears to give the terms : Si contendat fidejussor caeteros
solvendo esse, etiam exceptionem ei dandam : Si non et illi solvendo
sint, Dig. 46, 1, 28. 'The contention of a fidejussor that his
co-fidejussors are solvent may be expressed in an exception : Unless
such and such co-guarantors are solvent.' This privilege of the
fidejussor is called Beneficium divisionis.
§ 122. The lex Appuleia, which gave the sponsor or fidepromissor
an action analogous to that between partners, whereby he could
recover by contribution from his co-sureties whatever he had paid in
excess of his proportionate share, was passed B.C. 102. It was the
rule of the provinces as the lex Furia was the rule of Italy.
§ 123. The name of this law, lex Cicereia, was first discovered by
Studemund. Its date is not known, but as we gather from the text
it was passed at a time when fidejussors were not yet instituted.
§ 124. The lex Cornelia, the first which mentions the fidejussor as
well as the sponsor and fidepromissor, limiting the amount for which
the same guarantor could be bound as security for a contract either
of mutuum or of stipulatio in the same year for the same principal
in the same stipulation, was passed in the dictatorship of Sylla,
B.C. 81, and seems to show that the stringency of the lex Furia had
360 DE OBLIGATIONIBVS [in. §§ 110-127.
led to the employment of the fidejussor in preference to the sponsor
and fidepromissor. The sponsor and fidepromissor have vanished
from the legislation of Justinian.
§ 125. The lex Julia vicesima or vicesimaria was a law of
Augustus, A.D. 6, imposing, in support of the military treasury,
a succession duty of one twentieth of the value on all inheritances
and legacies acquired by Roman citizens. Certain exemptions from
the tax were allowed. It was with the object of increasing the
revenue arising from this source that Caracalla extended Eoman
citizenship to all free inhabitants of the Empire (Roby, 2, p. 32, n. 2).
§ 127. The lex Publilia, which enabled a sponsor who had paid
the debt of his principal, unless reimbursed within six months, to
recover by actio depensi, a form of manus injectio pro judicato
(4 § 22), twice the amount of the original debt, is of uncertain date.
The right of a fidejussor to require an assignment from the creditor
of his rights of action is called Beneficium cedendarum actionum.
If he neglected to avail himself of it and of his Beneficium divisionis,
he had, when sued, no Regressus, that is no means of making his
co-sureties share the liability with him, Dig. 46, 1, 39.
A surety or guarantor of a debt may require the creditor to pro-
ceed against the principal first, provided he was solvent and in
a position to be sued. But this change in the law, which is called
Beneficium excussionis, or ordinis, was not made till a late period,
being introduced by Justinian, Novella 4.
In Correality, as has been remarked above, the right of action
against remaining co-debtors was extinguished by the joinder of
issue in a suit against one of them (litis contestatio). This power
of litis contestatio to extinguish the creditor's right of action when
there was a relation of Correality between a number of debtors was
doubtless a motive leading to the substituting for Fidejussio other
forms of guaranty involving Solidarity instead of Correality, and
consequently free from extinction of right of action by mere litis
contestatio. Such forms were Mandatum qualificatum (§§ 155-162,
comm.) and Constitutum debiti alieni. At a later period litis
contestatio had not this effect, as, in respect of Fidejussio, was
expressly declared by Justinian, Cod. 8, 40, 28.
The general name of a stipulation by way of security for a debt is
cautio, 2 § 253. If the debtor alone was bound, it was called nuda
repromissio. If sureties were also bound, it was called satisdatio or
satisacceptio.
Before quitting the subject of suretyship we must observe a
peculiar feature of Roman law. the incapacity of women to become
surety — or intercede in any way for any one. This restriction,
which had been recognized to some extent by previous law, was
in. §§ 128-134.] DE LITTERARVM OBLIGATIONE 361
established by the senatusconsultum Vellaeanum passed in the reign
of Claudius, A.D. 46, and by the subsequent interpretation of that
enactment.
The senatusconsultum does not declare any proceeding which is
contrary to it to be void, but directs the magistrate, if an action
is brought, to see that the will of the senate is given effect to, which
he did by allowing a woman to plead the exceptio, S. C. Vellaeani,
Dig. 16, 1 ; 4 §§ 115-137, comm.
The most noticeable rule of English law respecting the contract
of guaranty is that it must be in writing. No action shall be
brought whereby to charge the defendant upon any special promise
to answer for the debt, default, or miscarriage of another person,
unless the agreement upon which such action shall be brought,
or some memorandum or note thereof, shall be in writing and
signed by the party to be charged therewith, or some other person
thereunto by him lawfully authorized, Statute of Frauds, 29
Charles II, sect. 4.
§ 128. Litteris obligatio fit
ueluti nominibus transscri-
pticiis. fit a,utem nomen trans-
scripticium duplici modo, uel
a re in personam uel a persona
in personam.
§ 129. (J. re in personam,
<rans)scriptio fit, ueluti si id
quod tu ex emptionis causa aut
conductionis aut societatis mihi
debeas, id expensum tibi tulero.
§ 130. A persona in personam
transscriptio fit, ueluti si id
quod mini Titius debet tibi id
expensum tulero, id est si Titius
te delegauerit mihi.
§ 131. Alia causa est eorum
nominum quae arcaria uocan-
tur. in his enim rei, non litte-
rarum obligatio consistit,quippe
non aliter ualewt quam si
numerata sit pecunia ; nume-
ratio autem pecuniae re facit
obligationem. qua de causa
recte dicemus arcaria nomina
§ 128. Literal contracts, or obli-
gations created by writing, are
made by transcriptive entries of
debit or credit in a journal.
Transcriptive entries are of two
kinds, either from thing to person
or from person to person.
§ 129. Transcription from thing
to person is made when the sum
which you owe me on a contract
of sale or letting or partnership
is debited to you in my journal
as if you had received it as a loan.
§ 130. Of transcription from
person to person we have an ex-
ample when the sum which Titius
owes me is entered in my journal
as debited to you, assuming that
you are indebted to Titius and
that Titius has substituted me
for himself as your creditor.
§ 131. Transcriptive entries
differ from mere entries of a
person as debtor to cash ; here
the obligation is not Literal but
Eeal, for it is invalid unless
money has been actually paid,
and payment of money consti-
tutes a Real obligation. Conse-
quently the entry of a person as
362
DE OBLIGATIONIBVS [m. §§ 128-134.
nullam facere obligationem, sed
obligationis factae testimonium
praebere.
§ 132. Vnde (non) proprie
diciturarcariisnominibus etiam
peregrines obligari, quia non
ipso nomine sed numeratione
^ecuniae obligantur; quodgenus
obligationis iuris gentium est.
§ 133. Trcmsscripticiis uero
nominibus an ob^igentur pere-
grini merito quaeritur, quia
quodammodo iuris ciuilis est
talis obligatio ; quod Neruae
placuit . Sabino au tern et Cassio
uisum est, si a re in personam
fiat nomen transscripticium,
etiam peregrinos obligari ; si
uero a persona in personam,
non obligari.
§ 134. Praeterea litterarum
obligatio fieri uidetur chiro-
graphis et syngraphis, id est si
quis debere se aut daturum se
scribat ; ita scilicet si eo nomine
stipulatio non fiat, quod genus
obligationis proprium peregri-
norum est.
debtor to cash does not constitute
an obligation, but is evidence of
an obligation.
§ 132. Accordingly, it is not
correct to say that debits to cash
(arcaria nomina) bind aliens as well
as citizens, because it is not the
entry in the journal but the pay-
ment of money that constitutes
the contract, a mode of obligation
which belongs to jus gentium.
§ 133. Whether transcriptive
debits form a contract binding on
aliens has been doubted with some
reason, for this contract is an in-
stitution of civil law, as Nerva
held. Sabinus and Cassius, how-
ever, held that transcription from
thing to person forms a contract
binding on an alien, though not
transcription from person to per-
son.
§ 134. Another Literal obliga-
tion is that created by chiro-
grapha and syngraphae, or written
acknowledgments of debt or pro-
mises to pay, unaccompanied by
stipulation. This mode of con-
tract is proper to aliens.
One of the account-books kept by the Komans, a nation of book-
keepers, was a waste or day book, called Adversaria, into which al
transactions were at once entered as they occurred. At the end of
each month the contents of the Adversaria were posted into the moi
formal journal, the Tabulae, or Codex accepti et expensi. Accordii
to Dionysius of Halicarnassus every Koman had to take an oat
once in five years before the Censors that his book-keeping
honest and accurate. (On the subject of Koman book-keeping anc
the literal contract, see Eoby, Bk. V, Appendix A ; Muirheac
Roman Law, 258 ; Sohm, p. 410, and the literature referred to bj
these writers.)
One, if not the only, species of Literal obligation, namely Expen-
silation, in the nature of a novation or transformation of a pi
existing debt into one of a stricter form, was effected by an entry ii
these domestic registers, and from Cicero, Pro Eoscio Comoedo, c. 5,
we may infer that the entry was binding even though it had not
in. §§ 128-134] DE LITTERARVH OBLIGATIONS 363
been transferred from the Adversaria to the Codex. The creditor,
apparently, with the consent and by the order of the debtor, debited
the latter with a certain sum in the books of the creditor (expensi-
latio). Afterwards a corresponding entry was made by the debtor in
the books of the debtor (acceptilatio). The literal contract, however,
appears to have been complete without the latter entry.
Apparently, the true contract was the entry in the creditor's
book. The consent (jussus) of the debtor to this entry was neces-
sary, but not restricted to any particular form. The entry in the
debtor's book was evidence, but not the only admissible evidence,
that he had assented to the entry in the creditor's book.
Theophilus, in his Greek version of the Institutes, gives the
following account of the process : fj 8* literis [eVo^] eWl TO iraXaiov
Xpfos fls naivw Suvtiov p.eraa^rjiJ.aTi^ofjiei'ov pf]p.acri. KOI ypti/i/iaut TvniKols. . . .
?fv 8e Tavra TO. pfjfj.araf anva Kal e'Ae'yero KOI fypdcptro' TOVS fKarbv xpvcrovs, ovs
ffj.ol (£ alrias p-iffdaxreuts xpecoorets, ov (K <rvv6r}K.r)s KCU o/^oXoytas S&xreir TU>V
oiKfiaiv ypap.fJ.aT(t)V ; fira fvfypdfaro, a>s diro TOV evo^ov 77877 yevofj.fvov (K Trjs
fjiicr6o>cr(u>s, ravra TO. p^fiara' 'E* rfjs cnjvdi]KT]s <j<pei'\a> riHtv oiKeiutv ypayu/xnTcoj/.
Kai f/ fiev rrpoTfpa fvo^r) aTretrfttvvvTo, Kaivortpa 8e eVwcrero, Theophilus, 3, 21.
' A literal obligation was an old debt transformed into a new loan
by certain solemn words and writings. The words which were
spoken and written in the register were as follows: " The hundred
aurei, which you owe me on account of rent, will you pay me on
the convention and acknowledgment of your own journal?" Then
followed, as if written by the person indebted for rent, these words :
" I owe you that sum by the admission of my own journal."
Whereby the pre-existing obligation was extinguished and a new one
created.' [From the mention of 'solemn words' Theophilus is
supposed to have confounded Expensilatio, which was independent
of spoken words, with Stipulatio accompanied by a written record or
CAUTIO.]
The account of Theophilus clearly only applies to one form of
expensilation, the transscriptio a re in personam. The use of this
kind of transscriptio is obvious : it was a mode of converting Form-
less contracts into Formal contracts — equitable obligations into
civil obligations : of metamorphosing claims recoverable by actions
ex bona fide, e.g. conducti locati, empti venditi, which in many
points favoured the defendant, into debts recoverable by the short
and sharp remedy of the civil action of Condictio, which, when
brought for certa pecunia credita, was the more formidable to a dis-
honest litigant, as it was accompanied by sponsio poenalis, whereby
the vanquished party forfeited a third of the sum in litigation, in
addition, if he was the defendant, to the original claim, 4 § 171.
A narrative of Cicero shows the employment and possible mis-
364 DE OBLIGATIONIBVS [rn. §§ 128-134.
employment of this transscriptio. He relates how a purchaser was
defrauded by a vendor, and in consequence of the form of contract
had no redress. Stomachari Canius. Sed quid faceret? Nondum
enim Aquilius collega et familiaris meus protulerat de dolo malo
formulas, De Off. 3,14. ' The purchaser was indignant, but he was
helpless, for my colleague Aquilius had not then invented the action
of Fraud.' It may occur to us, on hearing the story, that as the actio
Empti was an action ex bona fide, that is, one in which the judex
was empowered to consider allegations of bad faith, the defrauded
purchaser would not have been without a remedy. But, as Savigny
points out, Cicero had guarded against this objection by a certain
feature which he gives to the narrative. Emit homo cupidus et
locuples tanti quanti Pythius voluit, et emit instructos. Nominafacit,
negotium conficit. ' The purchaser was eager and rich, he bought at
the price the seller named, and he bought the gardens ready furnished.
The contract is by expensilatio ; the business is concluded.' Nomen,
which sometimes signifies any debt, is here used, in a specific sense,
for a debt created by Literal contract ; accordingly, nomina facit
implies that the purchase, as soon as concluded, had been novated,
§ 176, i. e. extinguished by metamorphosis into a ledger debt; so
that the transaction was removed from the domain of equity to that
of civil law, which in its primitive simplicity had no provision for
dolus malus.
Transscriptio a persona in personam was the substitution or
exchange of a debt owed by C to B, in discharge of a debt owed by
B to A ; or, at all events, the substitution of C in lieu of B as
debtor to A. Transscriptio would thus afford a ready means of
transferring obligations from one person to another, especially when
the parties were at a distance. It is impossible to form an exact
conception of the mode in which these transcriptions were operated
without a greater knowledge than we possess of the Roman method
of book-keeping. Nomen facere, as we have just stated, is to contract
a debt by literal obligation. Nomen signifies the name of the debtor,
as in the line of Horace: Scriptos nominibus certis expendere
nummos ; ' Recorded on his ledger to lend moneys to solvent bor-
rowers.' In the business of bankers (argentarii), whose book-keeping
of course was extremely regular, the Literal contract appears to have
survived when it had fallen into desuetude in other quarters.
The word Transscripticia may refer to the transfer involved in
Novation : Savigny, however, prefers the following origin of the
term. The Eoman account-book (tabulae accepti et expensi), he
supposes, was essentially a Cash-book ; a record of incomings and
outgoings of actual cash : i. e. the monthly or annual balance of
the debits and credits ought to correspond with and explain the
in. §§ 128-134.] DE LITTERARVM OBLIGATIONE 365
metallic contents of the cash-box or area at the end of the month
or year. This correspondence or agreement would be destroyed by
the introduction of Fictitious loans (expensilatio) into the accounts,
unless every such entry to the credit of the cashier or chest was
neutralized and cancelled by a cross or opposite entry, of an equally
fictitious character, to the debit of the chest or cashier. But if
this device was adopted the balance of the book would coincide
with the actual contents of the chest ; and the fictitious entries
would be called Transscripticia because they were always double :
because each was always accompanied by its shadow across the
page. Verm. Schriften, 1, 205, &c.
In the time of Justinian both of the modes of Expensilatio,
properly confined to Eoman citizens, though the Sabinians were
inclined to extend it in one form to aliens, § 133, had become
obsolete ; as also another form of Literal contract, the Syngrapha
or Chirographum, available where the parties were aliens. Syngrapha
and Chirographum, apparently, are synonymous, and signify a
written acknowledgment of a debt, such contract in Greece being
always ground to support an action, whatever its subject or form.
In the Corpus Juris the term Chirographum generally signifies a
cautio or a document which is evidence of the existence or discharge
of a debt, and the term Syngrapha occurs in the Greek Novellae of
Justinian in the same sense ; cf. Sohm, p. 414, n. 3.
The desuetude of Nomina transscripticia was probably due, not
simply to the fact that the Roman system of book-keeping was
strange in the east, but also to the invention of CONSTITUTUM, a
praetorian pact (pactum vestitum), which instead of converting, like
Expensilatio, an obligation bonae fidei into an obligation stricti juris,
superadded an actionable obligation to a previous obligation, whether
natural or civil [Ubi quis pro alio constituit se soluturum, adhuc is
pro quo constituit obligatus manet, Dig. 13, 5, 28, Inst. 4, 6, 9] ; and
which with its excessively penal sponsio, 4 § 171, gave the creditor
even a more effective remedy than the action on Expensilatio
(Condictio for pecunia certa credita).
Arcarium nomen was the record, not of a fictitious loan, like
nomen transscripticium, but of the counting out of money from the
cash-box (area), that is, of a genuine loan, and was, accordingly,
simply a memorandum of a Real obligation.
The coexistence of Nomina Arcaria with Nomina Transscripticia
shows that entry in a Ledger did not operate a novation and convert
a debt into a ledger debt, unless the transcriptive entry represented
a fictitious, not an actual, loan.
A stipulatio, unlike the entry in the journal or ledger of an actual
loan (nomina arcaria), was not an invariable accompaniment of an
366
DE OBLIGATIONIBVS [ra.§§ 135-138.
advance of money (mutui datio, annumeratio) ; and, when it was
employed simultaneously with annumeratio, unlike nomina arcaria,
it always constituted the contract : there were not two contracts,
a Eeal contract and a Verbal contract, but only a Verbal contract,
and this without the intervention of Novation, Dig. 46, 2, 6, 1, and
Dig. 46, 2, 7. Nam quotiens pecuniam mutuam dantes eandem
stipulamur, non duae obligationes nascuntur sed una verborum,
Dig. 45, 1, 126, 2. ' An advance accompanied by Stipulation does not
produce two contracts, but one, a Verbal contract.'
CONSENSV OBLIGATIONES.
§ 135. Simple consent creates
a contract in purchase and sale,
letting and hiring, partnership,
agency.
§ 136. In these contracts con-
sent is said to create the obliga-
tion, because no form of words
or of writing is required, but the
mere consent of the parties is
sufficient. Absent parties, there-
fore, can form these contracts ; as,
by letter or messenger ; whereas
Verbal obligations cannot be con-
tracted between absent parties.
§ 135. Consensu fiunt obliga-
tiones in emptionibus uenditio-
nibus, locationibus conductio-
nibus, societatibus, mandatis.
Inst. 3, 22, pr.
§ 136. Ideo autem istis modis
consensu dicimus obligationes
contrahi, quia neque uerborum
neque scripturae ulla proprietas
desideratur, sed sufficit eos qui
negotium gerunt consensisse.
unde inter absentes quoque
talia negotia contrahuntur, ue-
luti per epistulam aut per inter-
nuntium ; cum alioquin uerbo-
rum obligatio inter absentes
fieri non possit. Inst. 3, 22, 1.
§ 137. Item in his contracti-
bus alter alteri obligatur de eo,
quod alterum alteri ex bono et
aequo praestare oportet ; cum
alioquin in uerborum obliga-
tionibus alius stipuletur, alius
promittat, et in nominibus alius
expensum ferendo obliged, alius
obligetur. Inst. 3, 23, 3.
§ [138]. [Sed absenti expen-
sum ferri potest, etsi uerborum
obligatio cum absente contrahi
non possit.]
Besides the four Consensual contracts which are named in the
text, certain praetorian and statutory agreements, though not
denominated contracts, became enforceable by action. The most
important praetorian pact, or pacts enforced by the praetor, is con-
§ 137. Further, these contracts
are bilateral and bonae fidei, that
is, both parties incur a reciprocal
obligation to perform whatever
is fair and equal ; whereas Verbal
and Literal contracts are uni-
lateral, that is, one party stipu-
lates and the other promises, or
one party makes an entry of the
other's debit, and the other party
is bound thereby.
§ 138. But absence is no im-
pediment to Literal contracts,
though it is to Verbal.
in. §§139-141.] DE EMPTIONE ET VENDITIONE
367
stitutum or constituta pecunia, which we mentioned when treating
of stipulation, as a form of guaranty, Inst. 4, 6, 9. An instance of
statutory pact, or pact made valid by statute under Justinian, is
donatio inter vivos. A mere promise to give was irrevocable, and
the donor could be forced by action to perform his promise, but if
above 500 solidi it required public registration.
§ 139. .Zfrnptio et uenditio
contrahitur, cum de pretio
conuenerit, quamuis nondum
pretium numeratum sit, ac ne
arra quidem data fuerit ; nam
quod arrae nomine datur, argu-
mentum est emptionis et uendi-
tionis contractae. Inst. 3, 23, pr.
§ 140. Pretium autem certum
esse debet. nam alioquin si
ita inter nos conuenerit, ut
quanti Titius rem aestimauerit,
tanti sit empta, Labeo negauit
ullam uim hocnegotium habere ;
cuius opinionem Cassius probat.
Ofilius et earn emptionem et
uenditionem; cuius opinionem
Proculus secutus est.
Inst. 3, 23, 1.
§ 141. Item pretium in nu-
merata pecuniaconsistere debet.
nam in ceteris rebus an pretium
esse possit, ueluti homo aut
toga aut fundus alterius rei
(pretium esse possit}, ualde
quaeritur. nostri praeceptores
putant etiam in alia re posse
consistere pretium. unde illud
est, quod uulgo putant per per-
mutationem rerum emptionem
ei uenditionem contrahi, eam-
que speciem emptionis uendi-
tionisque uetustissimam esse ;
argumentoque utuntur Graeco
poeta Homero qui aliqua parte
sic ait :
ap' olvi^ovTo
aAA<H
coj, aAAoi 8' aWuivi
§ 139. The contract of purchase
and sale is complete so soon as
the price is agreed upon and
before the price or any earnest
money is paid. The earnest
money is merely evidence of the
completion of the contract.
§ 140. The price must be
certain. If there is an agree-
ment to purchase at a price to
be fixed by another person, as
say by Titius, Labeo, whose
opinion is approved of by Cassius,
says the contract is invalid,
Ofilius says it is a sale, and his
opinion is followed by Proculus.
§ 141. The price should be in
money, for it is much disputed
whether anything but money,
such as a slave, a robe, a piece
of land, can be treated as price.
My school hold the affirmative,
and regard exchange as a species,
and the oldest species, of pur-
chase and sale ; in support of
which they quote the lines of
Homer :
' Here touched Achaean barks in
quest of wine.
They purchased it with copper
and with steel,
With hides, with horned cattle,
and with slaves.'
The other school maintain the
negative, and distinguish between
exchange and purchase and sale,
because in exchange we cannot
determine which is the thing
368 DE OBLIGATIONIBVS [in. §§ 139-141.
aAXot 8e pivois, aXXoi 8' avrj/o-i sold and which is the price, and
(Soeo-a-iv, both things cannot be regarded
aAAoi 8' dj;8pa7ro'8eo-o-i.) as both the thing sold and the
diuersae scholae auctores dis- price. Caelius Sabinus says that
sentiunt aliudque esse existi- tf Ti*ius offers, say, land for sale,
mant permutationem rerum. and X &ive him a slave for ^
aliud em^tionem et uenditio- *he thlnS .sold is J06 Ia^d and
nem ; alioquin non posse rem ,the Pnce » the J^™ Because
j- • ,,. t_ the preceding oner determines
ef pediri permutatis rebus, quae whic£ objecfc fs reg and which ^
uideatur res uemsse et quae pretiuml
pretii nomine data esse, sed
rursus utramque rem uideri
et uenisse et utramque pretii
nomine datam esse absurdum
uideri. sed ait Caelius Sabinus,
si rem tibi uenalem habenti,
ueluti fundum, [acceperim et]
pretii nomine nominem forte
dederim, fundum quidem uideri
uenisse, hominem autem pretii
nomine datum esse, ut fundus
acciperetur. Inst. 3, 23, 2.
It is necessary to distinguish clearly between the completion of
a contract of sale and the subsequent transfer of ownership ; between
the creation of a jus in personam and the conveyance of a jus in
rem ; between the acquisition of an obligation and the acquisition of
ownership.
The contract is complete and so binding as soon as the object of
sale and the price are agreed upon, but no property passes until the
price is paid and the thing is either mancipated or possession is
delivered, or, in the case of a sale on credit, until possession is
delivered, Dig. 18, 1, 19. 'Sale and delivery do not pass property
unless the price is paid, or security is given for the price, or credit
is given without security,' Inst. 2, 1, 41. 'Sale and delivery do
not pass property, unless the vendee pays the price, or gives the
vendor security ; for instance, by a guarantor discharging the
vendee, or by mortgage. If, however, the sale is on credit, owner-
ship immediately passes/
By English law, if the contract is for the unconditional sale of
SPECIFIC goods, ready for delivery, and the price is ascertained, the
property in the goods passes to the buyer at the moment that the
contract is complete. But, unless it is a sale on credit, the buyer
cannot demand delivery of the goods until he has paid or tendered
the price. For if the sale is for ready money, delivery or tender of the
whole of the goods and price are concurrent conditions (i. e. the seller
in. §§ 139-141.] DE EMPTIONE ET VENDITIONE 369
must be ready and willing to give possession of the goods in exchange
for the price, and the buyer to pay the price in exchange for posses-
sion of the goods, as was the case also according to Roman law).
If the contract is not for the purchase of specific goods, but of
goods of a certain nature or class, only rights in personam arise from
the agreement ; for, though the contract is complete, no property
passes until the particular goods are ascertained by delivery, or
appropriated to the contract by the parties.
In the sale of land the equitable estate is conveyed by the contract
to convey, when perfected by the payment of the purchase-money,
and without notice to the party in whom the legal estate is vested :
the legal estate is only passed by the subsequent deed. Formerly the
deed was a Feoffment which was inoperative without livery of seisin,
that is, delivery of possession ; but now the deed of Grant passes
property without delivery of possession. The assignment of an
equitable interest in personal estate is not perfect, as against an
assignee for valuable consideration, without notice to the trustee.
By the Code Napoleon delivery is requisite for the transfer of
property in movables, but property in immovables, under French
law, is transferred as soon as the contract is complete and the title
to it is registered.
By Roman law, the goods are at the risk of the purchaser as
soon as the contract is complete, and before the property is trans-
ferred. The formula, res perit domino, therefore, does not apply to
the contract of purchase and sale, as it does to other contracts, e. g.
to mutuum, commodatum, pignus,
In English law, the risk always belongs to the person in whom
the property resides, and the maxim, res perit domino, is applicable
to sales.
§ 139. Arra, as a general rule, was evidence of the completion
of contract, but not always, at least in the time of Justinian. If
the parties so agreed, arra was only a penal sum, whose forfeiture
entitled either negotiator to recede from a negotiation or rescind
a completed contract, Cod. 4, 21, 17. In the absence of such
special agreement, in default of voluntary performance, performance
could be enforced by action, and forfeiture of the arra was cumu-
lative upon and additional to such performance : the vendee, if he
was in default, could not reckon the arra as part of the purchase-
money ; and the vendor, if in default, besides delivery of possession
and repayment of the arra, was compelled to pay an equal sum to
the vendee. (Cf. Moyle, Contract of Sale in Roman law, pp. 42, 48.)
§ 140. Where the price is left to be fixed by an arbitrator,
Justinian enacted, in conformity with the opinion of Proculus, that
the contract is binding if the arbitrator makes his valuation.
370 DE OBLIGATIONIBVS [in. §§ 139-141.
§ 141. After the time of Gaius, a constitution of Diocletian and
Maximian (A. D. 286-305), conformably to the opinion of Proculus,
declares exchange or barter to be a contract, requiring delivery of a
thing to make it enforceable, Cod. 4, 64, 3. 'An agreement to
exchange without part execution cannot support an action.' Ac-
cordingly, we have mentioned it as belonging to the miscellaneous
class of contractus innominati.
The obligation of the vendor was not to transfer quiritarian
ownership (ut rem emptoris faciat), but merely to secure the vendee
in undisturbed enjoyment (ut praestet habere licere) of the article
sold, that is, to give him vacant possession and guarantee him
against eviction. Accordingly, if the vendee is judicially molested
in his possession, he summons his vendor to defend his title, and,
if evicted, recovers against his vendor the loss he has sustained.
Venditor si ejus rei quam vendiderit dominus non sit, pretio
accepto, auctoritati manebit obnoxius, Paul. Sent. rec. 2, 17, 1.
'A vendor, not owner, on receipt of the purchase-money is liable
as warrantor.' Auctoritas est actio pro evictione, Dig. 21, 2, 76.
' Auctoritas is an action on eviction against the vendor.'
A sale was often accompanied by stipulations binding the vendor
to repay twice the purchase-money in case of eviction, or in case
the article sold was returned for unsoundness (duplae stipulatio).
English law implies a condition that the seller of goods has a right
to sell and a warranty that the buyer shall have quiet enjoyment,
but except in certain circumstances refuses to assume an implied
warranty of the goods or soundness of the articles sold, applying the
maxim caveat emptor. But by Roman law, in the absence of such
stipulations, warranty of the title and quality of the goods was held
to be inherent in the contract of sale. In the case of faults of quality
the purchaser could, by the edict of the curule aediles, either recover
part of the purchase-money by actio quanti minoris, or rescind the
contract by actio redhibitoria.
By English law mere inadequacy of price affords no ground for
setting aside a sale, unless it be so gross as to afford a necessary
presumption of fraud and imposition, and then a court of equity will
grant relief. By Roman law a vendor could, under a constitution of
the Emperor Diocletian A. D. 285, rescind a contract for the sale
of land on proof that the purchase-money was only half the value,
unless the buyer is willing to make the price justum, Cod. 4, 44, 2.
Peculiar to the English law of sale is the provision of the Statute
of Frauds, that contracts for the sale of lands are unenforceable
unless they are in writing signed by the party to be charged or
his agent: and, by the Sale of Goods Act, 1893, § 4, contracts for
the sale of goods of the value of £10 and upwards are not enforce-
in. §§ 142-147.] DE LOCATIONS ET CONDVCTIONE 371
able unless in writing signed by the party to be charged or his
agent, or unless the buyer accept and receive part of the goods, or
unless he give something in part payment or in earnest to bind the
bargain.
§ 142. Locatio autem et con-
ductio similibus regulis con-
stituitur; nisi enim merces
certa statuta sit, non uidetur
locatio et conductio contrahi.
Inst. 3, 24, pr.
§ 143. Vnde si alieno arbitrio
merces permissa sit, uelut
qu&nti Titius aestimauerit,
quaeritur an locatio et con-
ductio contrahatur. qua de
causa si fullom polienda curan-
daue, sarcinatori sarcienda
uestimenta dederim, nulla
statim mercede constituta,
postea tantum daturus quanti
inter nos conuenerit, quaeritur
an locatio et conductio con-
trahatur. Inst. 3, 24, 1.
§ 144. Item si rem tibi uten-
dam dederim et inuicem aliam
rem utendam acceperim, quae-
ritur an locatio et conductio
contrahatur. Inst. 3, 24, 2.
""§ 145. Adeo autem emptio
et uenditio et locatio et con-
ductio familiaritatem aliquam
inter se habere uidentur, ut in
quibusdam causis quaeri soleat,
utrum emptio et uenditio con-
trahatur an locatio et conductio.
ueluti si qua res in perpetuum
locata sit, quod euenit in prae-
diis municipum, quae ea lege
locantur, ut quamdiu [id]
uectigal praestetur, neque ipsi
conductori neque heredi eius
praedium auferatur. sed magis
placuit locationem conductio-
nemque esse. Inst. 3, 24, 3.
§ 146. Item [quaeritur] si
gladiatores ea lege tibi tradi-
derim, ut in singulos qui in-
B
§ 142. Letting and hiring are
governed by rules like those of
purchase and sale. Unless the
sum to be paid as hire is fixed,
the contract is not complete.
§ 143. And if the hire is to be
fixed by an arbitrator, for instance,
at the sum which Titius shall
consider fair, it is a question
whether there is a contract of
letting and hiring. Accordingly,
if I give clothes to a fuller to
clean or finish, or to a tailor to
mend, and the remuneration is
not fixed at the time, but left to
our subsequent agreement, it is
a question whether there is a
contract of letting and hiring.
§ 1 44. The same question arises
if I lend a thing for use and re-
ceive in return the loan for use of
another thing.
§ 145. Purchase and sale are so
nearly akin to letting and hiring
that in some cases it is a question
underwhich category the contract
falls ; for instance, when land is
leased in perpetuity, as occurs with
the land of municipalities, which
is leased on the condition that, so
long as the rent is paid, the lessee
and his heirs shall continue in
possession. But here the better
opinion is that the contract is
one of letting and hiring.
§ 146. If a band of gladiators
are delivered on the following
terms, that is to say, that for the
ba
372
DE OBUGATIONIBVS [in. §§ 142-147.
tegri exierint pro sudore denarii
xx mihi darentur, in eos uero
singulos qui occisi aut debilitati
fuerint denarii mille, quaeritur
utrum emptio et uenditio an
locatio et conductio contra-
hatur. et magis placuit eorum
qui integri exierint locationem
et conductionem contractam
uideri, at eorum qui occisi aut
debilitati sunt emptionem et
uenditionem esse ; idque ex
accidentibus apparet, tamquam
sub condicione facta cuiusque
uenditione an locations, iam
enim non dubitatur, quin sub
condicione res ueniri aut locari
possint.
§ 147. Item quaeritur, si
cum aurifice mihi conuenerit,
ut is ex auro suo certi ponderis
certaeque formae anulos mihi
facere£, et acciperet uerbi gratia
denarios cc, uti'um emptio et
uenditio an locatio et conductio
contrahatur. Cassius ait nia-
teriae quidem emptionem uen-
ditionemque contrahi, operarum
autem locationem et conduc-
tionem. sed plerisque placuit
emptionem et uenditionem con-
trahi. atqui si meum aurum
ei dedero mercede pro opera
constituta, conuenit locationem
conductionem contrahi.
Inst. 3, 24, 4.
§ 143. Justinian decided that a hiring for a sum to be fixed by
an arbitrator was valid, like a sale on similar terms, if the arbitrator
made his award ; but that if the sum was left to the future agree-
ment of the parties, or, § 144, if the consideration was not pecuniary
but a reciprocal service, the contract was not a Consensual one of
letting and hiring, but a contract innominate, deriving its validity
from part execution, and to be enforced by the action in factum
praescriptis verbis, Inst. 3, 24, 1, 2.
§ 145. Where Gaius speaks of ager vectigalis, Justinian speaks
of ager emphyteuticus or emphyteuticarius, because in his days the
performance of every one who
leaves the arena safe and sound
there shall be paid twenty denarii,
and for every one who is killed
or disabled there shall be paid one
thousand denarii, it is disputed
whether the contract is one of
purchase and sale or of letting
and hiring ; but the better opinion
is that the unharmed were let
and hired, the killed or disabled
were bought and sold, the con-
tracts depending on contingent
events, and each gladiator being
the subject of a conditional hiring
and a conditional sale, for it is
now certain that both hiring and
sale may be conditional.
§ 147. Again, if a goldsmith
agrees to make me rings of a
certain weight and fashion out of
his own gold for, say, two hundred
denarii, it is a question whether
the contract is purchase and sale
or letting and hiring. Cassius
says the material is bought and
sold, the labour is let and hired,
but most writers hold that there
is only a purchase and sale. But
if I provide the gold and agree
to pay him for his work, the
contract is settled to be a letting
and hiring.
in. §§ 142-147.] DE LOCATIONS ET CONDVCTIONE 373
rules of these two kinds of tenure had been entirely assimilated.
Ager vectigalis was land leased by a municipality, or a sacerdotal
college, or the Vestal Virgins in perpetuity, or for long terms of
years, for a rent (vectigal) either in money or in produce, usually
amounting to one fifth or one seventh of the profits. This kind of
lease, as we have already seen, was subsequently extended to imperial
lands let out for cultivation (agri emphyteuticarii). Emphyteusis
was the grant of land in perpetuity, or for a term of years, for an
annual rent, subject to forfeiture, without claim for meliorations, on
non-payment of rent by the emphyteuta for three years, or for two
years if the land was held of the church. Land held in emphyteusis
was alienable, devisable, descendible by intestacy. The proprietor,
however, had a right of pre-emption.
Emphyteusis resembled locatio-conductio in that the property
remained in the grantor, to whom a rent was payable and who in
certain events might recover the land ; it resembled emptio venditio
in that the grantee acquired not only detention of the land granted,
like the hirer (colonus), but also possession, properly so called, and
a proprietary right (jus in re) that nearly amounted to property or
dominion, and could be maintained by actio vectigalis, a real action
against all the world, including the landlord himself.
Zeno (A. D. 475-491) decided that Emphyteusis was a contract sui
generis, distinct from both locatio and venditio, and requiring for its
validity, at least where the parties contracted themselves out of the
rules generally applicable, to be reduced to writing, Cod. 4, 66, Inst.
3, 24, 3. As to the application of the principle res perit domino to
this relation, see Inst. 1. c.
Like pignus, emphyteusis is a combination of jus in personam and
jus in rem ; it was created by agreement without having to be followed
by delivery. Of. Windscheid, Pand. 1 § 221.
§ 146. Gladiators were either (i) prisoners of war, 'butchered to
make a Roman holiday,' or slaves who had committed some offence,
1 § 13, or criminals under a capital sentence ; or (2) freemen who
voluntarily adopted the profession and hired themselves out (au-
ctorati, 3 § 199) to persons who maintained troops or companies
(ludi familiae) of gladiators, either to make a profit, or to win the
favour of the public, by their exhibition. The first gladiatorial
show at Eome was exhibited B. c. 264. The passion of the populace
for these exhibitions in the palmy days of Rome amounted to
a mania ; and a vast revolution in public sentiment was implied
in their suppression, A.D. 325, by the following constitution of
Constantine, Cod. 11, 44. 'Exhibitions of bloodshed are out of
place in the reign of law and the bosom of a fatherland ; and
gladiatorial shows, therefore, are absolutely prohibited.'
374 DE OBLIGATIONIBVS [in. §§ 142-147.
Locator denotes the person who furnishes land or a house or
other article to be used by another ; conductor is the person who
takes the land or house (called colonus in the first case, inquilinus
in the second) or other article and pays a price in money for its use.
But in the case of opus faciendum, e. g. of a building to be con-
structed, or an article to be manufactured, the person who pays the
price, that is to say, the employer or orderer, is called locator ; the
person who performs the work or construction and receives the
price is called conductor. It may be worth inquiring how this
anomaly arose, and what led to this inversion of the meanings of
these correlative terms, and we shall find it in a certain incident,
common to these and other contracts, and which has induced the
English law to regard them as composing a single class and to
denote them by a common denomination.
Deposit, loan for use, pawn or pledge, letting and hiring of
a movable thing, and mandate in respect of a movable thing to be
redelivered, are grouped together in English law under the head of
Bailments. Bailment, derived from the French word bailler, ' to
deliver,' is defined to be a delivery of a chattel (movable) for
a specific purpose ; or, at greater length, a delivery of goods on
a condition that they shall be restored by the bailee to the bailor,
or according to his direction, as soon as the purpose for which they
were bailed shall be answered. These contracts, then, all imply
a delivery from the bailor to the bailee and a redelivery from the
bailee to the bailor or his order. Now in locatio-conductio operis
faciendi, as well as in locatio-conductio rei, there is usually a delivery
and a redelivery : for instance, goods are delivered to an innkeeper
to be kept, or to a carrier to be transported, or materials are delivered
to a manufacturer to be fashioned, and these goods and materials are
to be redelivered at another time, or in another place, or in an
altered form. It is this delivery and redelivery to which the Latin
language would seem to look in fixing on the persons to be denoted
respectively by the words locator and conductor ; and, accordingly,
by locator it denotes the person who lets out the thing or gives the
job to be done, or who, being a freeman, lets out his services (locatio-
conductio operarum), and by conductor the person who receives the
thing, or the job (opus), or the services (operae), without regarding
the fact that while in locatio-conductio rei or operarum the locator
supplies a service for which the conductor pays the price, in locatio-
conductio operis faciendi it is the locator who pays the price and
the conductor who performs the service.
Colonus, or the independent person who entered into a contract
of locatio-conductio respecting land, must be distinguished from the
colonus who mainly composed the agricultural population under the
in. §§ 148-154.] DE SOCIETATE 375
empire. Colonatus, the condition of the latter colonus, is an insti-
tution whose origin is obscure, but which probably began to be
common as early as A. D. 200. Colonatus was not a mere contractual
relation or jus in personam, but a real right or jus in rem, and may be
regarded as a new form of dependent status, a condition of subjection
to a superior, which may be classified with the status of familia or
domestic relations. It was a condition midway between freedom and
slavery. The colonus was liber and civis, but he was called by the
lawgiver servus terrae. He was inseparably bound to the soil :
a fugitive colonus, like a fugitive slave, was said to commit a theft
of his own body, and he could be recovered by real action (vindi-
catio) from any one who gave him harbour. He had property, but
it was called peculium, and, though he could not be deprived of it
like the slave, yet he could not aliene it without the consent of his
lord. With certain exceptions, he could not maintain an action
against his lord, who was called his patronus. Neither a colonus
nor his descendants could divest themselves of their hereditary
serfdom. The colonus, having no Keal right in the soil, paid no
land tax, but only a personal or capitation tax, like artisans and
slaves. As having an inherited condition, the colonus or inquilinus
was called originarius ; as subject to the capitation tax he was called
tributarius, capite censitus, adscriptitius, censibus adscriptus. He
paid to his lord a certain annual rent (canon), usually in kind, and
always incapable of augmentation. This fixity of his rent was the
principal right which he enjoyed. See Savigny's Vermischte Schriften,
15. If, seeking in Eoman law for types of Feudal institutions, we
find the germ of freehold tenure in Emphyteusis, the antitype of
copyhold tenure may similarly be discovered in Colonatus.
§ 148. Societatem coire so- § 148. A partnership either
lemus aut totoruin bonorum extends to all the goods of the
aut unius alicuius negotii, partners or is confined to a
ueluti mancipiorum emen- single business, for instance, the
dorum aut uendendorum. purchase and sale of slaves.
Inst. 3, 25, pr.
6 149. Magna autem quaestio
t -i •, § 149. It has been much can-
fuit, an ita coin possit societas, , ,, , , -, ^
* vassed whether the law would re-
ut quis maiorem partem lucre- ^ a tnershi formed on
tur mmorem damni praestet. th* term/tnat a partner should
quod Q. Mucius {contra na- have a greater share in the profit
turam soc^etat^s esse ex^st^- than he has in the loss. Quintus
mautt. sed Ser. Sulpicius, Mucius thought such an arrange-
cuius) etiam praeualuit sen- ment contrary to the nature of
tentia, adeo ita coiri posse partnership, but Servius Sulpi-
societatem existimauit, ut cius, whose opinion has pre-
376
DE OBLIGATIONIBVS [in. §§ 148-154.
dixerit illo quoque modo coiri
posse, ut quis nihil omnino
damni praestet, sed lucri partem
capiat, si modo opera eius tarn
pretiosa uideatur, ut aequum
sit eum cum hac pactione in
societatem admitti. nam et
ita posse coiri societatem con-
stat, ut unus pecuniam conferat,
alter non conferat, et tamen
lucrum inter eos commune sit ;
saepe enim opera alicuius pro
pecunia ualet. Inst. 3, 25^ 2.
§ 150. [Et] illud certum est,
si de partibus lucri et damni
nihil inter eos conuenerit,
[tainen] aequis ex partibus
eoinmodum et, incommodum
inter eos commune esse. sed
si in altero partes expressae
fuerint, uelut in lucro, in altero
uero omissae, in eo quoque
quod omissum est similes partes
erunt. Inst. 3, 25, 3.
§ 151. Manet autem societas
eo usque, donee in eodem con-
sensu perseuerant. at cum ali-
quis renuntiauerit societati,
societas soluitur. sed plane si
quis in hoc renuntiauerit socie-
tati ut obueniens aliquod
lucrum solus habeat, ueluti si
mihi totorum bonorum socius,
cum ab aliquo heres esset re-
lictus, in hoc renuntiauerit
societati ut hereditatem solus
lucri faciat, cogetur hoc lucrum
communicare. si quid uero
aliud lucri fecerit quod non
captauerit, ad ipsum solum
pertinet. mihi uero, quidquid
omnino post renuntiatam socie-
tatem adquiritur, soli conce-
ditur. Inst. 3, 25, 4.
§ 152. Soluitur adhuc so-
cietas etiam morte socii, quia
vailed, held that such a partner-
ship was so far from invalid that
a partnership might be formed
on the terms that a partner
should have a share in the gains
and none in the losses, if the value
of his services made such an
arrangement fair. It is certain
that a partnership may be formed
on the terms that one partner
shall contribute all the capital
and that the gains shall be
divided equally, for a man's
services may be equivalent to
capital.
§ 150. If no agreement has
been made as to the division of
the profit and loss, it must be in
equal shares. If the shares are
expressed in the event of profit
but not in the event of loss, the
loss must be divided in the same
proportions as the profit.
§ 151. The continuance of
partnership depends on the con-
tinuing consent of the members :
the renunciation of one dissolves
the partnership. If, however,
the object of a partner in re-
nouncing the partnership is to
monopolize some accruing gain ;
if> for instance, a partner with
others in all property (totorum
bonorum) succeeds to an inheri-
tance and renounces the partner-
ship in order to have exclusive
possession of the inheritance, he
will be compelled to divide this
gain with his partners ; but what
he gains undesignedly by the re-
nunciation he keeps to himself;
whatever acquisitions he makes
his partner always has exclusive
benefit of whatever accrues to
him after the renunciation.
§ 152. Dissolution of partner-
ship is also produced by the death
in. §§148-1 54.]
DE SOCIETATE
377
qui societatem contrahit certain
personam sibi eligit.
Inst. 3, 25, 5.
§ 153. Dicitur etiam capitis
diminutione solui societatem,
quia ciuili ratione capitis de-
minutio morti coaequatur ; sed
utique si adhuc consentiant
in societatem, noua uidetur
incipere societas.
§ 154. Item si cuius ex
sociis bona publice aut pri-
uatim uenierint, soluitur so-
cietas. sed haec quoque societas,
de qua loquimur, id est quae
consensu contrahitur nudo, iuris
gentium est, itaque inter omnes
homines naturali ratione con-
sistit. Inst. 3, 25, 7 and 8.
of a partner, for he who enters
into partnership elects a deter-
minate person with whom he is
willing to be partner.
§ 153. Loss of status (capitis
diminutio) is also said to deter-
mine partnership, because by the
doctrine of civil law loss of
status is regarded as equivalent
to death ; but if the members
still consent to be partners, a
new partnership commences.
§ 154. Again, the sale of all the
property of one of the partners,
whether by the state or by
private creditors, dissolves the
partnership. But the private
partnership of which we are
speaking, that is formed by mere
consent, belongs to jus gentium,
and so prevails in accordance with
natural reason among all men:
[whereas societas publicanorum
is not simply consensual and is
not open to peregrini. Cf.
Krueger and Studemund, Gaius,
note, h. 1.]
§ 148. In the absence of express agreement a partnership is
limited to gains by commercial transactions (universorum quae ex
quaestu veniunt) and excludes gains by inheritance, devise, donation.
A remarkable incident of unlimited partnership (universorum bono-
rum) was that it operated a transfer of ownership by mere agree-
ment without delivery, Dig. 17, 2, 1, 1 and 2. 'In partnership
of all goods, the property of all the members becomes forthwith
common, a constructive delivery being implied in the absence of
actual delivery.' This rule was not applied to other forms of
partnership.
§ 149. Although a partner might be exempt by the terms of the
agreement from any share in the losses, yet an agreement that
a partner should have no share in the gains was called a leonine
partnership (societas leonina), and being contrary to the general
object of the contract could not be enforced, Dig. 17, 2; 29, 2.
' Aristo records the decision of Cassius that a partnership on the
terms that one should take all the profits and another bear all
the loss, which he called a leonine partnership, is not binding, and
Ulpian concurs.'
§§ 153, 154. In saying that capitis minutio was a mode of
378 DE OBLIGATIONIBVS [in. §§ 155-162.
dissolving partnership Gaius seems to have expressed himself too
generally. Capitis minutio maxima, loss of liberty, would naturally
determine such a relation. Capitis minutio media, loss of citizen-
ship, might involve dissolution, if it were a consequence of
punishment, but not simply by a person becoming a citizen of
another community. Cf. Inst. 3, 25, 7 Publicatione quoque distrahj
societatem manifestum est, scilicet si universa bona socii publicentur ;
nam cum in ejus locum alius succedit, pro mortuo habetur. Nor,
according to the law as stated by Justinian, was partnership dissolved
by mere change of status, capitis minutio minima, as by arrogation
or emancipation. Cf . Dig. 1 7, 2 ; 65, 11. Hence in the corresponding
passage of his Institutes, above cited, capitis minutio is not mentioned
as a ground of dissolution.
The forced sale of a person's whole estate might be the result
of either a criminal or a civil proceeding, either condemnation for
crime or insolvency, and in the latter case for the benefit either
of the State or of private creditors. Damnatione bona publicantur
cum aut vita adimitur aut civitas aut servilis conditio irrogatur,
Dig. 48, 20, 1. 'Condemnation forfeits all a criminal's goods to the
treasury, if it deprives of life, or involves loss of civitas (capitis
minutio media), or loss of liberty (capitis minutio maxima).'
Confiscation (publicatio), under its ancient name of sectio bonorum,
has already, 3 § 80, been mentioned. The quaestors of the treasury
were sent into possession ; the sale, which was publicly advertised
(proscriptio), took place under the spear (sub hasta), the symbol of
absolute dominion, and vested in the purchaser (sector) quiritarian
ownership.
§ 155. Mandatum consistit § 155. Agency may contem-
siue nostra gratia mandemus plate the benefit either of the
siue aliena. itaque siue ut principal or of a stranger ; that
mea negotia geras, siue ut is to say, your undertaking at
alterius, mandauerim, contra- my request to transact my busi-
hitur mandati obligatio, et ness or the business of a third
inuicem alter alter! tenebimur Pefon wil1 creaj» «* obligation
in id, quod uel me tibi uel te ^T "% an?. 2S6™ T
•u- i! £j v. i4 tually liable to satisfy the demands
mihi bona nde praestare oportec. Q^ J ^ f ^
Inst. 3, 26, pr.
§ 156 Nam si tua gratia § 156 But if I give a mandate
tibi mandem, superuacuum est to you to perform anything for
mandatum ; quod emm tu tua your own exclusive advantage,
gratia facturus sis, id de tua the mandate is void, for what
sententia, non ex meo mandatu vou propose to do on your own
facere debes. itaque si otiosam account ought to be done on your
pecuniam domi te habentem own judgment and not by my
hortatus fuerim, ut earn faene- mandate. Thus if you tell me that
in. §§ 155-162.]
DE MANDATO
379
rares, quamuis ea.ro. ei mutuam
dederis, a quo seruare non
potueris, non tamen habebis
mecuin mandati actionem.
item si hortatus sim ut rem
aliquam emeres, quamim non
expedient tibi earn emisse, non
tain en tibi mandati tene&or.
et adeo haec ita sunt ut quae-
ratur, an mandati teneatur qui
mandauit tibi, utTitio pecuniam
faenerares. [sed] Seruius ne-
gauit nee magis hoc casu obliga-
tion em consistere putauit,quam
si generaliter alicui mandetur,
uti pecuniam suam faeneraret.
(seel) sequimur Sabini opinio-
nem contra sentientis, qum
non aliter Titio credidisses,
quam si tibi mandatum esset.
Inst. 3, 26, pr. and 6.
§ 157. Illud constat, si quis
de ea re mandet, quae contra
bonos mores est, non contrahi
obligationem ; ueluti si tibi
mandem, ut Titio furtum ant
iniuriam facias. Inst. 3, 26, 7.
§ 158. Item si quicZ post
mortem meam faciendum
(mihiy mandetur, inutile man-
datum est, quia generaliter
placuit ab heredis persona
obligationem incipere non
posse.
§ 159. Sed recte quoque
consummatum mandatum si,
dum adhuc Integra res sit,
reuocatum fuerit, euanescit.
Inst. 3, 26, 9.
§ 160. Item si adhuc in-
tegro mandate mors alterutrius
alicuius interueniat, id est uel
eius qui mandauerit uel eius
qm mandatum susceperit, sol-
uitur mandatum. sed utilitatis
causa recepturn est, ut si mortuo
eoquimihimandauerit ignorans
you have money lying in your
cash -box, and, on my advice to
lend it at interest, you lend it to
a person from whom you cannot
recover it, you will have no action
of mandate against me: or if
I recommend you to buy, and
you lose by buying, I am not
liable to be sued in action of
mandate. So settled is this, that
it has been questioned, whether
mandate can be brought on a
specific recommendation to lend
to Titius ; Servius holds that no
obligation arises in this case any
more than in that of a general
recommendation to lend money,
but we adopt the opposite opinion
of Sabinus, on the ground that
the money would not have been
lent to Titius, if there had been
no recommendation.
§ 157. It is clear that by a
mandate to do an unlawful act,
as to steal or commit a personal
wrong, no obligation is con-
tracted.
§ 158. A mandate to be exe-
cuted after the death of the man-
datary is invalid by the general
rule that an obligation cannot
commence with the heir.
§ 159. A valid authority is
annulled by revocation before a
commencement of execution.
§ 160. So the death of either
the principal or the agent before
a commencement of execution is
a revocation of a mandate : but
equity requires that, if after the
death of a person giving a man-
date and without having notice
of his decease a mandatary exe-
380
DE OBLIGATIONIBVS [in. §§ 155-162.
eum decessisse executus fuero
mandatum, posse me agere
mandati actione ; alioquin
iusta et proba bills ignorantia
damnum mihi ac^ferret. et
huic simile est quod plerisque
placuit, si debitor meus manu-
misso dispensatori meo per
ignorantiam soluerit, liberari
eum, cum alioquin stricta iuris
ratione non posset liberari eo,
quod alii soluisset quam cui
soluere deberet.
Inst. 3, 26, 10.
§ 161. Cum autem is cui
recte mandauerim egressus
fuerit mandatum, ego quidem
eatenus cum eo habeo mandati
actionem, quatenus mea interest
inplesse eum mandatum, si
modo inplere potuerit ; at ille
mecum agere non potest. ita-
que si mandauerim tibi, ut
uerbi gratia fundum mihi se-
stertiis c emeres, tu sestertiis
CL emeris, non habebis mecum
mandati actionem, etiamsi tanti
uelis mihi dare fundum, quanti
emendum tibi mandassem ; id-
que maxime Sabino et Cassio
placuit. quodsi minoris emeris,
habebis mecura scilicet ac-
tionem, quia qui mandat, ut C
milibus emeretur, is utique
mandare intellegitur, uti mi-
noris, si posset, emeretur.
Inst. 3, 26, 8.
§ 162. In summa sciendum
(est, quotiensy aliquid gratis
(faciendum} dederim, quo
nomine, si mercedem statuissem,
locatio et conductio contra-
heretur, mandati esse actionem;
ueluti si fulloni polienda curan-
daue uestimenta (dederimy aut
sarcinatori sarcienda.
Inst. 3, 26, 13.
cute his commission, he may re-
cover against the heir of the
principal in an action of man-
date ; for otherwise a justifiable
and natural error would bring
loss upon him. Similar to this
is the rule which is supported by
the weight of authority, that a
debtor who pays a manumitted
steward without notice of his
manumission is discharged of
liability ; though by the strict
letter of the law he is not dis-
charged, because he has not paid
the person whom he was bound
to pay.
§ 161. If a mandatary goes
beyond his mandate, he may be
sued for the amount which the
person giving the mandate loses
by its non-execution, if the exe-
cution was possible ; and he will
have no right of action against
the person giving the mandate.
So if I give you a mandate to
purchase an estate for, say, a
hundred thousand sesterces, and
you purchase for a hundred and
fifty thousand, you will have no
action of mandate against me,
although you are willing to con-
vey to me for the price at which I
authorized you to buy : soSabinus
and Cassius have decided. If you
buy it for less, you will have
a right of action against me, for
a mandate to buy for a hundred
thousand sesterces is regarded as
an implied mandate to buy, if
possible, for any smaller sum.
§ 162. Finally, the delivery
of material to be wrought or
fashioned gratuitously, where if
a remuneration had been fixed
there would have been a letting
and hiring, is ground for an action
of mandate ; for instance, if I
give clothes to a fuller to be
cleaned or bleached, or to a tailor
to be mended.
in. §§ 155-162.] DE MANDATO 381
In the contract of mandate (mandatum) the principal is called
dominus or mandator, the agent procurator or mandatary.
We have already mentioned, when treating of the verbal contract
of stipulation, that a guaranty was often given by the consensual
contract of mandate, §§ 110-127, comm. Such a mandate is called
by commentators MANDATUM QUALIFICATUM, or Mandatum Credendi.
We have the principle explained in § 156: he who recommends
a third person as of good credit is bound to make good his repre-
sentation and to indemnify another who sustains damage from giving
credit on the faith of that representation. So by English law a
person not interested in a transaction who makes a false and
fraudulent misrepresentation which induces another to trust and
contract with a third person is answerable for the loss occasioned by
his misrepresentation.
As such a representation was in effect a guaranty, and to allow
an action on a verbal misrepresentation would avoid the Statute of
Frauds, which requires a guaranty to be reduced to writing, Lord
Tenterden's Act, 9 George IV, chapter 14, enacted that no action
shall be brought whereby to charge any person upon any repre-
sentation or assurance concerning the character, credit, or ability
of any other person, to the intent that such other person may
obtain money or goods upon credit, unless such representation or
assurance be made in writing, signed by the party to be charged
therewith.
Another case in which a guarantor and person guaranteed stand in
the relation of mandant and mandatary occurs where A (the mandant),
being indebted to B (the mandatary), directs or delegates B, at the
risk of A, to obtain a promise by stipulation from a third party, C
(a debtor of A's), to pay to him (the mandatary) the debt which he
(C) owes to the mandant. Tua et mandantis [gratia intervenit
mandatum], ... si mandet tibi, . . . ut ipsius periculo stipuleris ab
eo quern tibi deleget in id quod tibi debuerat, Inst. 3, 26, 2. This is
one example of what is known as 'delegation,' a general term
embracing a variety of acts in all of which there is a direction or
order, to a person to do some act by which the parties to a legal
transaction are changed. Thus in eveiy delegation there are at least
three parties, the Delegans or person delegating some one else to
another, the Delegatus, or person thus delegated, and the Dele-
gatarius, or person in whose favour the delegation is made, and the
intention of the parties is that the act to be performed by Delegatus
in favour of Delegatarius shall have the same effect as if it had been
performed in favour of Delegans.
The Delegatus may be directed to bind himself to the third party
(promittere) instead of to the Delegans, as in the above instance, or
382 DE OBLIGATIONIBVS [in. §§ 155-162.
to make some payment or to convey something to him (dare) or to
release him from a debt (liberare). The object of the delegans in
making the delegation may be to give security to a creditor, or to
discharge his obligation to a creditor by giving him something
in lieu of payment (Solvit et qui reum delegat, Dig. 16, 1, 8, 3), or
to make a gift or grant a dos to a third party, or to make a loan to
him (Si me . . . mutuam pecuniam rogaveris et ego meum debitorem
tibi promittere jusserim, Dig. 12, 1, 32), or any other object. In
the same way the act which Delegatus undertakes to do for the
third party may have for its object the discharge of a debt which he
owes to Delegans, or gift, or loan, &c. From what has been said it is
clear that there is no necessary connexion between delegation and
novation, and that delegatio may or may not involve novatio. It
does so only if delegatus makes a promise to delegatarius by which
an obligation due from him to delegans is put an end to, but where
the act to be performed is dare or liberare no new obligation arises,
so that there cannot, of course, be any novation. But in the above
case of delegation (Inst. 3, 26, 3), the debtor delegated is discharged
from his old debt to the person, who delegates him, by novation
(cf. 2 § 38), while the new creditor, to whom he is delegated, has not
only the action on the stipulation against him, but may also sue the
Delegans by actio mandati contraria, if the actio ex stipulatu proves
abortive. Hence in this way a creditor obtains security for his
debt, his guaranty legally arising not from the delegatio itself, but
from the contract of mandatum which accompanies it.
Civilians have drawn a distinction which we do not find in Roman
law between delegatio and assignatio, the latter being an order on
a person to pay a sum to the assignatarius on the demand of the
latter, e.g. a cheque on a bank. Until payment assignans has
a power of revoking the order, and assignatus may, apart from any
contract with assignans, refuse to comply with the order ; hence the
maxim : assignation is not payment. But when payment has once
been made, it has the same effect as if it had been made to assignans.
The Romans, no doubt, made great use of delegation in com-
mercial and other transactions, especially when these were conducted
by parties at a distance from one another. We know, e. g., that
Cicero pater supplied Cicero filius when a student at Athens with
money by the mediation of his friend Atticus who, as publican, had
debtors in Greece. The procedure would be as follows :
Atticus (A, assignator), at the request of Cicero pater (C, assigna-
tarius primus), orders Graeculus (B, assignatus) to pay to Cicero
filius (D, assignatarius secundus) what Atticus owes to Cicero pater.
The payment by Graeculus to Assignatarius secundus, D, discharges
the debt of Graeculus to Atticus, the debt of Atticus to Cicero
in. §§ 155-162.] DE MANDATO 383
pater, and if D were an independent person, creditor of Cicero pater,
the debt of Cicero pater to D.
Mandate might be employed to operate a kind of transfer of
obligation, or rather perhaps the right of action arising from obliga-
tion, without, like Delegation or Novation, requiring the concurrence
of the debtor, by Mandatum Agendi — the mandate by the creditor of
his rights of action to a third party (mandare, cedere, praestare
actiones). The creditor made the third party by mandate his
processual representative (cognitor, procurator, cf. 4 §§83, 84), the
understanding being that though the mandatary must carry on the
action in the name of the mandator (cf. 4 § 86), he was in fact to
recover for himself. Hence such an assignee in the form of a
processual agent is called cognitor or procurator in rem suam, the
benefit of the obligation, as distinct from the obligation itself, being
transferred to him.
It was not without difficulty that this mode of assignment was
rendered suitable for its purpose, the revocable nature of the contract
of mandatum and the fact that it was put an end to by the death of
either party being obstacles to its becoming so. But while a cognitor
or procurator, after the stage of litis contestatio in an action had been
reached, when the formula was issued, had control of the proceedings,
and so could not after this be removed, it came to be established that
notice to the debtor of the assignment of the debt should have the
same effect in the way of preventing revocation as litis contestatio,
so that from the date of notice, the debtor was bound to pay the debt
to the assignee ; cf. Sohm, § 87. Moreover, in the event of the mandate
being dissolved by death, the praetor allowed the representative of
the assignee to recover by actio utilis.
In later Eoman law subsequently, it appears, to the time of Gaius,
actio utilis was given in all cases where an intention to assign was
shown, although a mandatum agendi had not been given. By this
praetorian action — which is supposed by some writers to have been
based on the fiction that the assignee had been made procurator,
but is more probably actio in factum — the assignee sued in his own
name and not in that of his creditor. Cod. 4, 15, 5, Diocletian
and Maximian, A.D. 294. In solutum nomine dato non aliter nisi
mandatis actionibus ex persona sui debitoris adversus ejus debitores
creditor experiri potest. Suo autem nomine utili actione recte utitur.
Here we may seem to have the principle of the transferability of
obligations recognized in Eoman law.
But the cession or assignment was never completely detached from
the person and liabilities of the assigning creditor. The cessionary
or assignee was open to all the exceptions, except those of a purely
personal nature, that might have been opposed to the original
384 DE OBLIGATIONIBVS [in. §§ 155-162.
creditor, e. g. to compensation, or set-off of a debt, which the creditor
owed the debtor ; to exceptio non-numeratae pecuniae ; and to an
exception instituted by the lex Anastasiana, shortly before the time
of Justinian, to stop the buying of claims for small sums, a statute
which prevented any purchaser of a debt from recovering more than
the price at which it was actually purchased. And similar objec-
tions might be raised in respect of any assignee intermediate between
the original assignor and the final assignee. Thus though the actio
utilis, no actio directa being possible, was brought in the name of
the assignee, it may still be held that, according to the Eoman view,
it was only exercised in a kind of representative capacity, the bare
obligation itself remaining with the original creditor. The complete
transferability of obligations was unknown to jurisprudence until
the law merchant gave validity to mercantile instruments, such as
bills of exchange, passing freely from hand to hand ; in other words,
to papers payable to the Holder or Bearer, 2 § 259, comm.
In such papers the jus in personam is, as it were, incorporated
in the document thus made freely assignable, the holder of an
instrument of this kind being able to recover on it, although the
person from whom he received it may not have been able to do so.
We have instances of such papers (called negotiable) in Promissory
Notes, Bills of Exchange, State obligations (documents expressing
a claim against a government for a certain amount of capital debt,
and having annexed to them coupons, representing claims of
periodic interest), and some Debentures of industrial corporations
(certificates of Shares in such industrial companies, though similar
to Debentures as entitling the Holder to certain dividends or shares
in the profits, are foreign to our present purpose, because they
essentially and originally relate to Property or jus in rem, not to
Obligation or jus in personam, the Shareholders being co-proprietors).
By the use of such negotiable papers the transferability of Obligation
is raised to a level with the transferability of Ownership, Savigny,
Obligationenrecht, 62-70. It is to be remembered that the cession
or assignment of which we have been speaking is a succession to
a particular right, and is not to be confounded with the general
assignment of rights and obligations in a successio per universitatem.
Cession or assignment is in the strict sense the act of the creditor, but
rights of action may also be transferred from one person to another
by decree of a court or by the direct operation of a rule of law.
§ 161. The doctrine of Sabinus that if an agent exceed his
powers in the price at which he purchases, the principal is not
bound for the purchase-money even after deduction of the un-
authorized excess, was not allowed to prevail, as we are informed by
Justinian. See Inst. 3, 26, 8.
m. §§ 155-162.] DE MANDATO 385
§ 162. It is only when the property of the mandator is entrusted
to the mandatarius, such as in the cases here mentioned, that the
contract of mandatum can fall under the head of Bailment.
The gratuitous character of mandatum was often in later Eoman
law rather nominal than real. The professor of a liberal art (operae
liberales) could recover a remuneration which, however, was dis-
guised under the name of salarium or honorarium, and could not be
sued for by action of mandate before an ordinary judge, but was a
matter for the extraordinary cognizance of the praetor or governor of
a province. Adversus eum cujus negotia gesta sunt, de pecunia quam
de propriis opibus vel ab aliis mutuo acceptam erogasti, mandati
actione pro sorte et usuris potes experiri. De salario autem quod
promisit, apud praesidem provinciae cognitio praebebitur, Cod. (Emp.
Severus and Antoninus) 4, 35, 1. ' The person whose business you
transacted, as to the moneys out of your own pocket or taken up at
a loan which you spent for his use, may be forced by action of
mandate to reimburse you the principal and interest. But as to
the salary which he promised this is a matter falling within the
jurisdiction of the president of the province.' Under the liberal pro-
fessions are included advocates, physicians, oculists, aurists, dentists,
copyists (librarii), notaries, accountants, school-masters, nurses, rheto-
ricians, grammarians, geometers, land surveyors. The professors of
philosophy and of civil law may receive fees voluntarily offered, but
their functions are so exalted that it would be unseemly in them
to ask for a pecuniary remuneration even at the tribunal of the
praetor, Dig. 50, 13, 1. On the other hand, payment for services
of an inferior kind (operae illiberales) could be enforced by actio
locati.
The law of contractual agency was, as we have seen, only slowly
developed in Eoman jurisprudence. Originally the cases in which
one person could bind another person by his contracts were confined
to contracts made under certain circumstances by persons under
power, that is to say, sons or slaves.
A right acquired by a son or slave was acquired for the father or
master, 1 § 163, and when an obligation was enforceable by one of the
actiones adjecticiae qualitatis, the father or master, or principal, could
be sued upon it, 4 §§ 70-74. But in other cases the benefit or burden
of a contract was confined to the parties contracting. The procurator
or agent contracted with a third party in his own name : the third
party recovered his dues from the agent by an action on the contract :
and the agent would in turn recover his from the principal by an
action on the mandate. There was no immediate relation between
the third party and the principal, and any action in which the third
party sued the principal or vice versa, could have only resulted from
WHITTUCK C C
386 DE OBLIGATIONIBVS [in. §§ 155-162.
CESSIO ACTIONUM, i. e. an assignment of actions between the agent
and principal, or the agent and the other party to the contract.
But in process of time, the manager of a shop (institor) and captain
of a ship (magister) were enabled by praetorian law to make the
employer and shipowner (exercitor) liable to third parties by means
of the actions institoria and exercitoria, who could sue the principal,
4 § 71. This was gradually extended so as to allow to all persons
who contracted with an agent having authority for the purpose a
right of action, called quasi institoria, against his employer, as well
as against the agent himself, who was the contracting party.
When the praetors, proceeding by timid and hesitating steps, had
reached this point, the Roman law of agency had nearly approached
the system we find established in modern Europe. Under this
system it is a general rule, that when an agent is duly constituted
and discloses the name of his principal, so as to enable the party
with whom he deals to have recourse to the principal, and contracts
in his name and on his behalf, and does not exceed his authority,
the principal is responsible and not the agent. But in Roman law
the free agent is never regarded simply as an instrument for bringing
about an agreement between the parties interested, unless he is
a mere nuntius. If he makes a contract for his principal he cannot
escape being a party to it and so being liable under it ; though by
means of an actio adjecticiae qualitatis, the principal may also be
rendered liable. See above, § 103 and 4 § 34.
After explaining obligations founded on contract, Justinian, Inst.
3, 27, treats of a miscellaneous group of obligations which are neither
founded on contract nor on delict, but which, as the circumstances
in which they arise and their effect resemble more or less the circum-
stances and effect of one or other of the legal contracts, are denomi-
nated by the name of obligations quasi ex contractu. These demand
from us a brief notice.
Three of them, namely, those which ground the actions by or
against a tutor, by or against a curator, by or against an unau-
thorized agent (negotiorum gestor), clearly resemble obligations
founded on the contract of mandate. The ward and minor stand
to the tutor and curator nearly in the relation of principal and
agent, although they are legally incompetent to give an authority
(mandatum) or confer a power of administration. A person who,
in the absence and without the authority of another, voluntarily inter-
fered to protect his interests (voluntarius procurator) incurred liability
and acquired rights against the person in whose affairs he interfered.
English law does not recognize a title to compensation in the case
of voluntary interference, unless we find a parallel in the rights of
salvors in the case of property lost or endangered on the ocean.
in. §§163-167a.] PER QVAS PERSONAS ADQVIRITVR 387
Three other obligations quasi ex contractu, those that are en-
forced by an action for division of common property between tenants
in common (communi dividundo), by action for partition of an in-
heritance between co-heredes (familiae erciscundae), by an action for
demarcation of boundaries between adjoining landowners (finium
regundorum), resemble the obligations arising in partnership. These
actions are distinguished from all others by the adjudicatio, a clause
in the formula which empowered the judex by the mere effect of his
judgment to operate a transfer of property, 4 § 42. They are called
mixed actions by Ulpian, because both parties are equally plaintiff
and defendant, Dig. 44, 7, 37, 1 ; by Justinian (Inst. 4, 6, 20), because
they are both real and personal, that is, are founded on obligation,
but are concerned also with questions between the parties concerning
ownership or inheritance, which they have to decide, Keller, Civil
Process, § 87 ; they were, however, regarded by the jurists as pro-
perly personal actions, as arising from a quasi-contractual relation.
The obligation of a heres to a legatee, enforceable by actio legati
in personam or condictio ex testamento, is another case of obligatio
quasi ex contractu. The aditio of the hereditas may be regarded as
an undertaking to satisfy the bequests, if there are assets for the
purpose. Aditio is called Obligatio, 2 §§ 35, 36.
Again, money paid by mistake or without consideration (indebi-
tum solutum) created an obligation to repay, enforceable by indebiti
soluti condictio, which closely resembles the obligation created by
the contract of mutuum, see § 91.
§ 163. Expositis generibus § 163. Having thus explained
obligationum quae ex contractu the different kinds of obligations
nascuntur admonendi sumus produced by contract, we remark
adquiri nobis non solum per that obligations may be acquired
nosmet ipsos, sed etiam per eas n°t onlv bv our own contracts,
personas quae in nostra pote- but also bY the contracts of per-
state manu mancipioue sunt. son.s in our P°.wer> in our hand>
Inst. 3, 28, pr. or m our manciPlum-
§ 164 Per liberos quoque § 164. Free persons, also, and
homines et alienos seruos quos the slaves of another person,
bona fide possidemus adquiritur acquire for the person who has
nobis, sed tantum ex duabus bona fide possession of them as
causis, id est si quid ex operis his slaves ; but they only do so
suis uel ex re nostra adquirant. in two cases> that is if they
Inst. 3 28 1 . acquire anything by their own
labour, or from the property of
the person who has bona fide
possession of them.
§165. Per eum quoque § 165. A slave held in usufruct
seruum in quo usumfructum similarly acquires for the usu-
C c 2
388
DE OBLIGATIONIBVS [m. §§ 163-167 a.
habemus similiter ex duabus
istis causis nobis adquiritur.
Inst. 3, 28, 2.
§ 166. Sed qui nudum ius
Quiritium in seruo habet. licet
dominus sit, minus tamen iuris
in ea re habere intellegitur
quam usufructuarius et bonae
fidei possessor, nam placet ex
nulla causa ei adquiri posse ;
adeo ut, etsi nominatim ei dari
stipulatus fuerit seruus man-
cipioue nomine eius acceperit,
quidam existiment nihil ei ad-
qum.
§ 167. Communem seruum
pro dominica parte dominis
adquirere certum est ; excepto
eo quod uni nominatim stipu-
lando aut mancipio accipiendo
illi soli adquiri£, uelut cum ita
stipuletur: TITIO DOMINO MEO
DAEI SPONDES1? aut cum ita
mancipio accipiat : HANG EEM
EX IVBE QVIRITIVM L. TITII
DOMINI MEI ESSE AIO EAQVE
EI EMPTA ESTO HOC AERE
Inst. 3, 28, 3.
§ 167 a. Illud quaeritur an
quod domini nomen adiectum
efficit, idem faciat unius ex
dominis iussum intercedens.
nostri praeceptores perinde ei
qui iusserit soli adquiri exis-
timant, atque si nominatim ei
soli stipulatus esset seruus man-
cipioue accepisset. diuersae
scholae auctores proinde utris-
que adquiri putant, ac si nullitis
iussum interuenisset. Inst. 1. c.
fructuary in the above two
cases.
§ 166. A person who has the
bare quiritary property in a slave,
although he is his owner, has less
right in his acquisitions than the
usufructuary or bona fide pos-
sessor; forunderno circumstances
are the acquisitions of the slave
acquired for him ; so that even
when the slave expressly stipu-
lates for him or accepts a thing
in mancipation on his account,
accordingtosomeauthorities, such
a bare owner acquires no right.
§ 1 67. A common slave acquires
for all his proprietors in the pro-
portion of their property, unless
he names one exclusively in a
stipulation or mancipation, in
which case he acquires for him
alone. For instance, if he stipu-
lates thus: 'Dost thou promise
to convey to Titius, my master ? '
or, when he takes by mancipation,
thus : ' This thing by quiritary
law I declare to be the property
of Lucius Titius, my master,
and for him be it purchased by
this piece of bronze and bronze
balance.'
§ 1 6 7 a. It is a question, whether
the same effect is produced by the
exclusive order of one of the mas-
ters, as by the exclusive mention
of the name of one. My school
maintain that the sole orderer is
the sole acquirer, just as when
one alone is named by the slave
in a stipulation or mancipation ;
the other school maintain that
all the owners acquire, just as if
there had been no order.
§ 163. Justinian enacted, as we have seen, that while the pecu-
lium profecticium of the filiusfamilias, that is, the peculium which
he derived from his father, remained the property of the father ; and
while in respect of peculium castrense and quasi castrense the son
was in the position of paterfamilias, or absolute owner ; in respect
in. §§ 168-181.] Q. M. OBLIGATIO TOLLATVR
389
of peculium adventicium, that is. other peculium derived from any
other source than the father, only the usufruct should vest in the
father, subject to which the ownership remained in the son. In
respect of the obligations acquired by the son, the same principle
was to prevail, Inst. 3, 28, pr. ' What is realized from obligations
acquired by a son shall be divided, as his property is by our
constitution, into ownership and usufruct ; so that the usufruct of
the proceeds of any action shall vest in the father, and in the son as
owner, the whole right of action vesting in the father, according
to the distinctions expressed in the statute.'
§ 167 a. Justinian decided this question in favour of the doctrine
of Sabinus, Inst. 3, 28, 13.
To the persons through whom an obligation could be acquired
might be added in modern systems of law the procurator or agent,
when the contract of the agent is treated as if it had been made by
the principal himself. But Eoman law always regarded the agent
who made the contract as the party to it, in other words it did not
admit the principle of contractual agency. Cf. § 162, comm.
§ 168. Tollitur autem obli-
gatio praecipue solutione eius
quod debetur. unde quaeritur,
si quis consentiente creditore
aliud pro alio soluerit, utrum
ipso iure liberetur, quod nostria
praeceptoribus placuit, an ipso
iure maneat obligatus, sed ad-
uersus petentem exceptione doli
mail defend! debeat, quod di-
uersae scholae auctoribusuisum
est. Inst. 3, 29, pr.
§ 169. Hem per acceptila-
tionem tollitur obligatio. ac-
ceptilatio autem est ueluti
imaginaria solutio ; quod enim
ex uerborum obligatione tibi
debeam, id si uelis mini re-
mittere, poterit sic fieri, ut
patiaris haec uerba me dicere
QVOH EGO TIBI PBOMISI, HA-
BESNE ACCEPTVM ? et tu re-
spondeas : HABEO.
Inst. 3, 29, 1.
§ 168. Extinction of an obliga-
tion is effected chiefly by actual
performance of that which is owed.
Hence it is disputed, whether when
a person with the consent of his
creditor makes a different perform-
ance in the place of the one con-
tracted for, he is directly dis-
charged by law of his obligation,
as my school consider him to be,
or whether he nevertheless con-
tinues to be bound by direct law,
but against a plaintiff trying to
enforce his claim, may defend
himself by the exception of fraud,
as the other school maintain.
§ 169. Acceptilation is another
mode of extinguishing an obliga-
tion. Acceptilation is, as it were,
an imaginary performance of an
obligation (imaginaria solutio).
If a creditor is willing to release
what a person owes him under a
verbal obligation, the object may
be accomplished by the latter in-
terrogating him in these terms:
'That which I promised thee hast
thou received ? ' upon which he
answers : ' I have received it.'
390
DE OBLIGATIONIBVS [in. §§ 168-181.
§ 170. Quo genere, ut dixi-
mus, (tantum eae obligationes
soluuntur, quae ex uerbis con-
sistunt,) non etiam ceterae ;
consentaneum enim uisum est
uerbis factam obligationem
posse aliis uerbis dissolui. sed
id quod ex alia causa debeatur
potest in stipulationem deduci
et per (acceptilaticmem dis-
solui. Inst. 1. c.
§171. Quamuis autem dixe-
rimus fieri} acceptilationem
imaginaria solutione, tamen
mulier sine tutoris auctoritate
acceptum facere non potest,
cum alioquin solui ei sine
tutoris auctoritate possit.
§ 172. Item quod debetu?',
pro parte recte soluitnr ; a,n
autem in partem acceptum fieri
possit, quaesitum (esty.
§ 173. Est etiam alia species
imaginariae solutionis per aes
et libram. quod et ipsum
genus certis in causis receptum
est, ueluti si quid eo nomine
debeatur, quod per aes et
libram gesturn sit, siue quid
ex iudicati causa deb(eatur.
§174. EaqueresitaagYitur:
adhibe?itur non minus quam
quinque testes et libripens.
deinde is qui liberatwr ita
oportetloquatur: QVODEGOTIBI
TOT MILIBVS CONDEMN AT VS SVM,
MB EO NOMINE A TE SOLVO
LIBEROQVE HOC AERE AENEA-
QVE LIBRA. HANC TIBI LIBRAM
PRIMAM POSTREMAJtfQVU EX-
PEND o (SECVNDVN) LEGEM
PVBLICAM. deinde asse per-
cutit libram eumque dat ei
a quo liberatu?', ueluti soluendi
causa.
§ 175. Similiter legatarius
heredem eodem modo liberat
§ 170. This process, as I said,
only discharges obligations that
arise from verbal contract, not
others ; for it seems to be con-
sistent that when an obligation
is made by words, it should be
dissoluble by other words. How-
ever, a debt due from any other
cause may be transformed into
a stipulation, and released by
acceptilation.
§ 171. But notwithstanding
our statement that acceptilation
is an imaginarypayment, awoman
without her guardian's sanction
cannot release by acceptilation,
although actual payment to her
without her guardian's sanction
discharges the debtor.
§ 1 72. So a debt may be legally
paid in part, but whether it can be
released in part by acceptilation
is a question.
§ 173. There is another mode
.of imaginary payment, namely,
by bronze and balance (per aes
et libram). This also is only em-
ployed in certain cases, as when
a debt is due on account of a
proceeding per aes et libram, or
in case of a judgment debt.
§ 174. This proceeding is thus
effected. There must be present
five witnesses and a holder of the
scales, and the person to be re-
leased must say these words :
' Whereas I am condemned to
thee in so many thousand sesterces,
that debt I pay and discharge by
this bronze and balance of bronze.
This is the first, this the last,
pound of bronze that I weigh out
to thee according to the public
statute (the Twelve Tables).'
Then he strikes the scales with the
bronze money and gives the latter
to the creditor as if in payment.
§ 175. Similarly, the legatee
releases the heir from a legacy
in. §§168-181.] Q. M. OBLIGATED TOLLATVR
391
de legato quod per damna-
tionem relictum est, ut tamen
scilicet, sicut iudicatus con-
demnatum se esse significat,
ita heres testamerito se dare
damnatum esse dicat. de eo
tamen tantum potest heres eo
modo liberari, quod pondere
numero constet ; et ita si
certum sit. quidam et de eo
quod mensura const at idem
existimant.
§ 176. Praeterea nouatione
tollitur obligatio ; ueluti si
quod tu mihi debeas, a Titio
dari stipulatus sim. nam inter-
uentu nouae personae noua
nascitur obligatio et prima
tollitur translata in poste-
riorem, adeo ut mterdum,
licet posterior stipulatio in-
utilis sit, tamen prima noua-
tionis iure tollatur; ueluti si
quod mihi debes, a Titio post
mortem eius uel a muliere
pupilloue sine tutoris auctori-
tate stipulatus fuero. quo casu
rem arnitto ; nam et prior
debitor liberatur et posterior
obligatio nulla est. non idem
iuris est, si a seruo stipulatus
fuero ; nam tune {priory pro-
inde adhuc obligatus tenetur,
ac si postea a nullo stipulatus
fuissem. Inst. 3, 29, 3.
§ 177. Sed si eadem persona
sit a qua postea stipuler, ita
demum nouatio fit, si quid in
posteriore stipulatione noui sit,
forte si condicio aut dies aut
sponsor adiciatur aut cfetra-
hatur. Inst. 1. c.
§ 178. Sed quod! de sponsore
diximus, non constat ; nam
left in the form of condemnation
(per damnationem), except that
whereas the judgment debtor re-
cites the fact that he is a con-
demned person (condemnatum),
the heir recites that he is charged
(damnatum) by the testament of
the deceased to pay the legacy.
An obligation can be thus dis-
charged only if certain in amount
and estimated by number or
weight, or, according to some, by
measure.
§ 176. Novation is another
mode of extinguishing an obliga-
tion, as when I stipulate with
Titius that he shall pay me what
you owe me, for the intervention
of a new person gives birth to a
new obligation, and the first obli-
gation is done away with, being
transformed into the succeeding
one. So much so that sometimes,
even though the new stipulation
is invalid, the previous one is
done away with by novation ; for
instance, if you owe me a sum,
and I stipulate from Titius pay-
ment thereof after his death, or
if I stipulate payment thereof
from a woman or ward (pupillus)
without the guardian's sanction,
in this case my claim is extin-
guished, for the first debtor is dis-
charged, and the subsequent obli-
gation is void. The same does
not hold if I stipulate from a
slave, for then the former debtor
continues bound, just as if there
was no subsequent stipulation.
§ 177. But when the original
debtor is himself the promisor, a
second stipulation only operates
a novation if it contains some-
thing new ; if a condition, for in-
stance, or a time for payment, or
a sponsor, is added or omitted.
§ 178. Eespecting the sponsor,
however, this statement is not
392
DE OBLIGATIONIBVS [in. §§ 168-181.
diuersae scholae auctoribus
placuit nihil ad nouationem
proficere sponsoris adiectionem
ant detrac£ionem.
§ 179. Quod autem dixiraus,
si condicio adiciatur, noua-
tionem fieri, sic intellegi oportet,
ut ita dicamus factam noua-
tionem, si condicio extiterit ;
alioquin si defecerit, durat prior
obligatio. sed uideanms, nurn
is qui eo nomine agat doli mali
aut pacti conuenti exceptione
possit summoueri, quia uidetur
inter eos id actum, ut ita ea
res peteretur, si posterioris
stipulationis extiterit condicio.
Ser. tamen Sulpicius existi-
mauit statim et pendente con-
dicione nouationem fieri, et si
defecerit condicio, ex neutra
causa agi posse (ety eo modo
rein perire. qui consequenter et
iljud respondit, si quis id, quod
sibi L. Titius deberet, a seruo
fuerit stipulatus, nouationem
fieri et rem perire, quia cum
seruo agi non posset, (serf)
in utroque casu alio iure
utimur. nee magis his casibus
nouatio fit, quam si id quod
tu mihi debeas a peregrine,
cum quo sponsus communio
non est, SPONDES uerbo stipu^
latus sim. Inst. 1. c.
§ 180. ToUitur adhuc obli-
gatio litis contestatione, si modo
legitimo iudicio fuerit actum.
nam tune obligatio quidem
principalis dissoluitur, incipit
autem teneri reus litis contesta-
free from doubt, for the other
school held that novation is not
operated by a sponsor being added
or omitted.
§ 179. The statement that the
introduction of a condition
operates a novation must be
restricted to mean, that a nova-
tion is produced if the condition
is accomplished ; for otherwise if
the condition fails the prior obli-
gation continues in force. How-
ever, it is a question, whether the
creditor who sues on such a prior
obligation cannot be repelled by
the exception of fraud (doli), or of
informal agreement not to sue ;
since it seems to have been the
intention of the parties that the
debt should be only recoverable
if the condition of the second sti-
pulation were realized. Servius
Sulpicius even held that nova-
tion occurs immediately, and
while the accomplishment of the
condition is still uncertain ; and
that, if the condition fails, neither
obligation can be sued upon, and
the creditor's claim is extin-
guished ; and, consistently here-
with, he held that, if the debt
due from Lucius Titius is stipu-
lated by the creditor from his
slave, novation takes place, and
while the original obligation is
extinguished, the second is void
because the slave cannot be sued.
But in both cases the contrary
rule prevails, and no novation
occurs in these cases any more
than it occurs if an alien, who
cannot be sponsor, promise pay-
ment of a debt due from you to
me by the solemn term 'spondeo.'
§ 180. The extinction of an
obligation is also effected by join-
der of issue (litis contestatio), at
least of a statutable action (judi-
cium legitimum, 4 § 104). Then
the original obligation is dis-
in. §§ 168-181.] Q. M. OBLIGATIO TOLLATVR
393
tione ; sed s^ condemnatus sit,
sublata litis contestatione in-
cipit ex causa iudicati teneri.
et hoc (esty quod apud ueteres
scrotum est, ante litem con-
testatam dare debitorem opor-
tere, post litem contestatam
condemnari oportere, post con-
demnationem iudicatum facere
oportere.
§ 181. Vnde fit, ut si legitimo
iudicio debitum petiero, postea
de eo ipso iure agere non possim,
quia inutiliter intendo DABI
MIHI OPORTERE, quia litis con-
testatione dari oportere desiit.
aliter atque si imperio conti-
nenti iudicio egerim ; tune eniin
nihilo minus obligatio durat, et
ideo ipso iure postea agere
possum, sed debeo per excep-
tionem rei iudicatae uel in iudi-
cium deductae summoueri. quae
autem legitima iudicia et quae
imperio continents (sint), se-
quent! commentario referemus.
solved, and a new obligation is
imposed on the defendant, by
joinder of issue. But if he is
condemned, the obligation arising
from joinder of issue is discharged,
and a new obligation arises from
the judgment. Hence the say-
ing of the old jurists, that, before
action brought, a debtor is bound
to pay his debt ; after joinder of
issue he is bound by the con-
demnatio of the formula ; after
condemnation passed, he is bound
to satisfy the judgment.
§ 181. Accordingly, after suing
by statutable action, the extinction
of the original obligation disables
me by strict law from bringing a
second action, for the declaration
that the defendant is bound to
convey something to me is false,
as joinder of issue in the first
action terminated his obligation.
It is otherwise if I sued at first by
an action depending on the execu-
tive power (imperium) of the prae-
tor, 4 § 105. For then the original
obligation continues, and so, ac-
cording to strict law, its non-
extinction permits me to bring
a second action ; but I may be
repelled by the exception of pre-
vious judgment (res judicata) or
previous joinder of issue (res in
judicium deducta). What actions
are statutable, and what deter-
mine with (or, derive their force
from) the praetor's executive
power, will be explained in the
next book of these Institutes.
§ 168. Gaius only considers at present the modes of extinguishing
an obligation, i. e. the modes whereby an obligation ceases to exist.
In the next book, 4 § 1 1 5, he will treat of the exceptio, that is to say,
a defence to an action whereby, though the right of the plaintiff con-
tinues to exist, it is deprived of its operation by being confronted
with an adverse riafht of the defendant ; which defence required to
be alleged with the permission of the praetor in a special clause of
the formula called the exceptio.
394 DE OBLIGATIONIBVS [in. §§ 168-181.
Every obligation, as we have seen, 3 § 88, comm., relates to a certain
dare, facere, or praestare ; that is to say, the actual performance (solutio)
of every obligation will consist in either dare, facere, or praestare.
The doctrine of Sabinus, that a substituted performance with the
consent of the creditor (in solutum datio) operates the extinction of
an obligation, was the view that ultimately prevailed. Manifest!
juris est, tarn alio pro debitore solvente, quam rebus pro numerata
pecunia consentiente creditore datis tolli paratam obligationem,
Cod. 8, 42, 17. ' It is certain that payment by a third person, or
the substitution of other things for money, with the consent of the
creditor, discharges an obligation.'
§§ 169, 170. Acceptation, the release of an obligation contracted
by stipulation by means of a contraiy stipulation, was probably at first
not a mode of discharge by itself but had to be accompanied by an actual
payment of the debt. Subsequently it operated as a release by the
fiction of payment having been made — acceptilatio estveluti imaginaria
solutio (cf. Sohm, § 89). It was only, however, a form of release from
verbal obligations, but Aquilius Gallus, the colleague of Cicero in his
praetorship, the pupil of Quintus Mucius and teacher of Servius Sulpi-
cius, the inventor of formulas relating to dolus malus, Cic. de Off. 3, 1 4,
made it a mode of releasing from all obligations by a general form
called acceptilatio Aquiliana, which is here referred to, cf. Inst. 3, 29, 2.
' There is a stipulation called Aquilian, whereby all obligations are
transmuted into a verbal one, and forthwith discharged by acceptila-
tion. For the Aquilian stipulation operates a novation of all pre-
existing debts, and is thus expressed : " Whatever thing, on whatever
title, thou art or shalt be bound to convey to me or to perform for me
now or hereafter, absolutely or conditionally ; whatever thing I have
or shall have an action, personal, real, or extraordinary, against thee
to recover; whatever thing of mine thou hast, detainest, possessest,
hast possessed, or hast fraudulently parted with possession of ; what-
ever sum is the value of all these things, that sum dost thou promise
to pay me?" so asks Aulus Agerius, and Numerius Negidius answers :
"I promise." Then Numerius Negidius asks of Aulus Agerius:
" Whatever I have promised thee to-day by the Aquilian stipulation,
hast thou received it all in full ? " and Aulus Agerius answers :
" I have, and have given thee my release." '
The narrative form (stipulatus est, spopondit, interrogavit) in
which the transaction is expressed by Justinian, properly belongs,
not to the stipulation and acceptilation, but to the written memo-
randum (cautio) in which they are recorded.
§ 172. It was subsequently an established doctrine that a partial
release by acceptilation was valid, Dig. 46, 4, 13, 1.
§§ 173-175. It might perhaps have been expected that the release
in. §§ 168-181.] Q. M. OBLIGATIO TOLLATVR 395
of a legacy would be operated per aes et libram, because the will
containing the bequest was a transaction per aes et libram, on the
principle that all obligations may be released by the process whereby
they were contracted. Nihil tarn naturale est quam eo genere quidque
dissolvere quo colligatum est : ideo verborum obligatio verbis tollitur :
nudi consensus obligatio contrario consensu dissolvitur, Dig. 50, 17,
35. Omnia quae jure contrahuntur contrario jure pereunt, Dig. 50,
17, 100. Fere quibuscunque modis obligamur, iisdem in contrarium
actis liberamur, Dig. 50, 17, 153. 'To every mode of obligation
there is an obverse mode of liberation.'
But nexi liberatio is only applicable to legatum per damnationem,
nor is it easy to explain why a judgment debt and legacy in this
form could only be released by the proceeding with the bronze and
scales. It was evidently the appropriate way of discharging nexal
debtors, and, when it came to be accompanied by only an imaginary
payment, was apparently used as a general form for releasing all
debtors who were in the position of nexi, including not only judg-
ment debtors, but also an heir solemnly charged with the payment
of a legacy by the form of condemnation (per damnationem). Cf.
Sohm, § 89.
It is to be noticed that Gaius says nothing of exoneration from
an obligation contracted literis, but it is clear that as a debt could
be constituted by expensilatio, so it could be cancelled by a
corresponding accepti relatio.
A consensual contract, not yet followed by partial execution (re
nondum secuta, Inst. 3, 29, 4), could be dissolved by a contrary
agreement (or in the cases of mandate and partnership by mere
dissent). Hae obligationes quae consensu contrahuntur contraria
voluntate dissolvuntur, ibid. ' Obligations which consent creates,
a contrary accord dissolves.' But after a part performance, that is
performance by one of the parties, the contract must not be thus
abandoned by the other unless he made restitution, Cod. 4, 45, 1.
Not only could the obligation created by consensual contract be
extinguished by consent, but obligation created by delict could by
certain statutes or otherwise be obliterated by agreement or com-
promise, or at least made unenforceable. Legitima conventio est quae
lege aliqua confirmatur, et ideo interdum ex pacto actio nascitur vel
tollitur quotiens lege vel senatusconsulto adjuvatur, Dig. 47, 10, 6.
Thus the obligations and actions arising out of outrage (injuriarum)
and theft could be extinguished by the parties coming together, in
the latter case, by enactment of the Twelve Tables.
§ 176. It seems irrational that an invalid contract should be held
to operate a novation, but an agreement might be valid as obligatio
naturalis though unenforceable at Civil law ; and in respect of
396 DE OBLIGATIONIBVS [in. §§ 168-181.
Novation naturalis obligatio was placed on a level with civilis
obligatio. Novatio est prioris debiti in aliam obligationem, vel
civilem vel naturalem, transfusio atque translatio, hoc est cum ex
praecedenti causa ita nova constituatur ut prior perematur. . . .
Qualiscunque igitur obligatio sit quae praecessit, novari verbis potest,
dummodo sequens obligatio aut civiliter teneat aut naturaliter, ut
puta si pupillus sine tutoris auctoritate promiserit, Dig. 46, 2, 1.
' Novation is the merger and transfer of a prior debt into a subse-
quent obligation, civil or natural ; or the destruction of a prior obliga-
tion by the constitution of a new one. Every kind of obligation can
undergo novation by verbal contract, provided that the subsequent
obligation binds either as civilly enforceable or as merely a natural
one, as the promise of a ward without his guardian's sanction.'
§ 177. We have already seen an instance of novation when treat-
ing of delegatio, §§ 155-162, comm., the satisfaction of a debt by
substitution of a debtor. The substituted debtor who discharges
by stipulation the first is called an expromissor, §§ 110-127, comm.
§ 178. We see by Justinian, Inst. 3, 29, 3, that the addition or
omission of a fidejussor was finally held to operate a novation.
§ 179. Servius Sulpicius was wrong because novation implies
a subsequent obligation, but a conditional obligation is really no
obligation until the condition is realized. So if the prior obligation
is conditional and the second obligation absolute, the novation is
not absolute but conditional, because there is really no prior obli-
gation until the condition is realized, at which moment novation
takes place, and the prior obligation is extinguished.
Justinian, on account of the frequency of disputes as to whether
the parties had the intention of novation, enacted that no contract
should operate a novation, unless the stipulating parties expressly
declared their intention that such novation should be produced, Inst.
3, 29, 3 a; Cod. 8, 41, 8.
§ 180. LITIS CONTESTATIO, Joinder in issue, or the settlement of the
issue to be tried by the judex, denoted, under the system of statute-
process, when pleadings were oral, the close of the proceedings in
jure, when, the praetor having allowed an action, each party called
those who were present to attest the nature of the issue allotted
to be tried. Festus. 'Contestation is when both parties exclaim,
" Give your attestation." It marks the definitive settlement of the
issue to be tried.' Under the formulary system the term was still
employed, but marked the moment when the praetor delivered the
written formula containing the commission of the judex. Under
the third period of the law, when the praetor or highest judicial
functionary was himself the judex, that is, no longer delegated the
cause to a judex privatus, but either heard and determined it himself
in. §§ 168-181.] Q. M. OBLIGATIO TOLLATVR 397
or delegated his authority to an official (judex pedaneus), Litis Con-
testatio denoted the commencement of the trial before the judex.
Lis enim tune contestata videtur, quum judex per narrationem
negotii causam audire coeperit, Cod. 3, 9, 1. 'Litis contestatio is
the moment when the judge begins to hear the recital of the cause
of action.' By legitima judicia, 4 § 103, Gaius denotes those actions
in the formulary procedure which by provision of the lex Aebutia,
whereby statute-process was abolished, were put on the same footing
as the legis actiones and so had the same effect, in respect of nova-
tion and otherwise, as this statute-process, which they superseded,
cf. Sohm, pp. 260, 267. Actions terminable with the praetorship
were such actions as did not derive their validity from the lex
Aebutia, but simply from the executive power of the praetor (quae
imperio continentia, § 101, cf. 4 § 105).
The transformations of Litis contestatio which are described above
were not the last that it was destined to undergo. In the first stage
of procedure under the Canon law, after the libellus of the plaintiff
had been read aloud, the judge asked the plaintiff whether he abided
by his suit ; and, on his answer in the affirmative, his libellus was
contradicted by the defendant in general terms (nego narrata prout
narrantur et dico petita fieri non debere). The detailed contention
of the parties over the particular averments of the plaintiff did not
follow till a subsequent stage.
In Germany in A. D. 1654 an ordinance of the empire required
the defendant to answer all the allegations of the plaintiff and
adduce all his own exceptions at the first stage : and, as in practice
the reading of the plaintiffs libellus was omitted, the Litis con-
testatio, or first term or stage of the suit, consisted in this detailed
answer of the defendant. Subsequently, when written documents
superseded oral procedure, the Litis contestatio was identified with
the defendant's delivery of what was called his book of exceptions.
The Novation produced by Litis contestatio is called by modern
writers Novatio necessaria. It has not all the incidents of Novatio
voluntaria, or Novation induced by agreement : for instance, as
Litis contestatio must not deteriorate the position of the creditor,
the object of its incidents being to remove the disadvantages which
he suffers from the duration of the suit, it does not extinguish the
accessories of the principal obligation, e. g. interest, fidejussio,
hypotheca, Dig. 46, 2, 29. It originally, as we have seen, in con-
sequence of the Correality of the Fidejussor, i.e. the unity of his
obligation with that of the principal, extinguished the liability of
the Fidejussor : but this rule, as we have mentioned, was abrogated
by Justinian, who enacted that the liability of the Fidejussor could
not be extinguished by Litis contestatio, but only by Solutio.
398 DE OBLIGATIONIBVS [in. §§ 168-181.
Nor, secondly, did Novatio necessaria, though it extinguished
Civilis obligatio, prevent, like Novatio voluntaria, the continuance
of Naturalis obligatio, Dig. 1 2, 6, 60.
Under Justinian Litis contestatio lost half of its effect: it still
retained the positive function of generating a new obligation ; but
it ceased to have the negative function of extinguishing the old
obligation. From this time, accordingly, we cease to hear of pro-
cess-consumption of this kind whether extinctive (litis consumptio
ipso jure) as relating to statutory actions, or counteractive (exceptio
rei in judicium deductae) as relating to actions dependent on the
authority of the praetor. Indeed the former of these (litis con-
sumptio ipso jure) had disappeared long before, contemporaneously
with the disappearance of legitima judicia ; that is to say, with the
abolition under Diocletian of the ordo judiciorum (formulary system),
and the transformation of all procedure into cognitio extraordinaria.
Gaius attributes a Novative power not only to Litis contestatio,
but also to Judgment (res judicata). Judgment, like litis con-
testatio, has two functions, one Negative, the other Positive. By
its Negative operation it extinguishes the previous right of action :
by its Positive it entitles, in the event of Condemnatio, to Execu-
tion. The Positive function is in the interest of the plaintiff:
the Negative principally in the interest of the defendant. Under
Justinian the novative effect of Judgment, as well as that of Litis
contestatio, was considerably altered. It was partly narrowed :
e.g. an absolution on the ground of Plus petitio, 4 § 53, or of a
dilatory exception, 4 § 120, no longer grounded an exceptio rei
judicatae : and it was partly extended : for instance it founded ex-
ceptio rei judicatae not only in respect of the principal question, but
also in respect of incidental questions, whose decision was pre-
liminary to that of the principal question, and in respect of any
exceptions or replications. In view of these changes it is said that
Res judicata, like Litis contestatio, while it retained its positive
functions, lost its negative functions. But while it still generated
an exceptio rei judicatae it seems difficult to say that it ceased
to have a negative or consumptive operation : though this was
attenuated, and made more rigorously subsidiary to the positive
operation ; and was henceforth left entirely to the discretion of the
praetor.
The present seems to be the most convenient occasion that we
shall find for gathering together in one conspectus the various
operations and effects of Litis contestatio : fuller explanations of
each will be found scattered over this treatise in connexion with the
various matters to which such operations relate.
i. The principal operation was originally the processual con-
in. §§ 168-181.] Q. M. OBLIGATIO TOLLATVR 399
sumption of a right of action (litis consumptio) which has just been
described : the barring of any subsequent suit in virtue of the maxim :
De eadem re ne bis sit actio, Quintilian, 7, 6, 1, either by extinction
(ipso jure) or by counteraction (ope exceptionis) of the plaintiff's right
to sue. This occurred, as we shall see, 4 § 103, even when in conse-
quence of process-prescription there was no judgment, or when, by
reason of Plus petitio or some dilatory plea, there was a judgment
against the plaintiff but not upon its merits. The operation was
gradually abrogated before the time of Justinian, only leaving
traces of itself in the Novatio necessaria, which extinguished indeed
civilis obligatio but left a naturalis obligatio, sufficient to support
the pignora or hypothecae by which the plaintiff was protected.
Processual consumption had only considered the Intentio of the
action that was brought : the exceptio rei judicatae, by which in
later times the same or similar objects were accomplished, regarded
the exact import of the Sententia. The most signal departure from
the principle of processual consumption was perhaps Justinian's
constitution, Cod. 8, 40, 28, concerning Correality and Fidejussio,
§§ 110-127, comm. As Correality is a single obligation imposed on
several debtors, a suit against one extinguished the obligation of the
remainder : e. g. a suit brought against a principal extinguished
the right of suing the surety, and vice versa. Justinian enacted
that the obligation of the remaining correal debtors should not be
extinguished even by judgment against one, but only by complete
satisfaction of the plaintiffs claim.
2. (a) Litis contestatio, in the classical period, by interrupting
Prescription, 4 §§ 110-1 1 3, comm., saved the plaintiffs title from being
barred by lapse of time. At a later period, Prescription was inter-
rupted by a still earlier event, Insinuatio or registration in court.
As soon as Prescription of the right of action was thus interrupted,
Prescription of pendency began to run, 4 §§ 104, 105.
Moreover, respecting the plaintiffs Title or ground of action it is a
general rule that no causa superveniens, or entitling event, subsequent
to Litis contestatio can avail to save the plaintiff from losing the
action already brought, though it may give him the right to bring
another. Further, as a general rule, the ground of action must not
only exist before Litis contestatio but must continue up to con-
demnatio. Otherwise in virtue of the maxim : Omnia judicia esse
absolutoria, though there was a difference of opinion between the
Sabinians and Proculians on this point, 4 § 114, the defendant will
be absolved. E. g. if the defendant in a condictio furtiva was a con-
ditional legatee of the thing which he has stolen from the heir who
sues him for damages, and the condition is fulfilled after Litis
contestatio, the defendant is acquitted, Dig. 13, 1, 14, pr.
400 DE OBLIGATIONIBVS [in. §§ 168-181.
(6) Litis contestatio made an exception to the latter rule in respect
of the ancient institution of Usucapio ; which though not interrupted
by litis contestatio, did not entitle the defendant to absolution, as
litis contestatio made it revocable, Dig. 6, 1, 18. Lbngi temporis
praescriptio, like other forms of Prescription, was interrupted by litis
contestatio, or, in later times, by Insinuatio : and from Cod. 7, 33,
10 and Cod. 7, 40, 2, this seems to have been the result when
Justinian transformed longi temporis possessio into Usucapion.
Savigny, however, § 261, and Vangerow, § 160, hold that then the
rule of Prescription was in this respect superseded by the rule of
Usucapion : that litis contestatio or insinuatio produced, that is to
say, not interruption but liability to revocation. (As to this
difference between Usucapio and longi temporis possessio, see
Gruebers Lex Aquilia, p. 240, and Windscheid's Pandekten, § 180,
note 7.)
(c) Litis contestatio produced another exception to the rule in the
event of the destruction of the subject of litigation by casualty (casus).
In Real actions if the defendant is a Mala fide possessor : in Personal
actions if he is a debtor chargeable with mora, destruction of the
subject, although ascribable to Casus, and notwithstanding the
maxim : Impossibilium non est obligatio : does not save the defendant
from condemnation. In the absence of Mala fides and Mora, casual
destruction of the subject entitles the defendant, in virtue of the
above maxim, to absolution.
(d) Litis contestatio makes transmissible a right of action which
before was untransmissible, 4 § 112, comm. Vindictive actions
(actiones vindictam spirantes), so long as there has been no litis
contestatio, are incapable of active transmission ; i. e. transmission
to the heir of the plaintiff : and penal actions are incapable of passive
transmission ; i. e. transmission to the heir of the defendant. But
when once litis contestatio has taken place, these actions, in the
event of the subsequent death of the plaintiff or defendant, become
capable respectively of active and passive transmission.
(e) In an action arising from delict when a man is only suable to
the extent of his enrichment thereby, the question whether he is
enriched or not is decided entirely by his circumstances at the moment
of litis contestatio.
It was stated that as a general rule the plaintiffs title to judgment
was required to be in existence before litis contestatio. This is sub-
ject to exception in respect of some of the subordinate elements of
title, certain minor conditions of judgment in his favour which agree
in the common character that, in the formulary period, they were
not expressed, as conditions of the judgment, in the intentio of the
formula. E. g. in vindicatio the possession of the subject by the
in. §§ 168-181.] Q. M. OBLIGATIO TOLLATVK 401
defendant, although it commences after litis contestatio, suffices to
render him liable to be condemned. So in the actio de peculio,
the existence of a peculium ; in the actio mandati, the existence of
moneys belonging to the principal in the hands of the agent ; in the
actio pigneraticia, the satisfaction of the debt by the mortgagor ; all
respectively conditions of a judgment in favour of the plaintiff, render
the defendant liable to condemnatio even when they are events
subsequent to the institution of the suit.
The same applies to certain exceptions : in the exceptio divisionis
the question respecting the solvency of co-guarantors, § 121, and in
the beneficium competentiae, 4 §§ 39-44, comm., the question respect-
ing the means of the defendant is decided according to the circum-
stances in existence at the moment of condemnation.
3. Litis contestatio has hitherto been considered in respect of its
influence on the Conservation or Destruction of a ground of action.
We proceed to its effect on the Amount of the condemnation or of
the damages to be awarded.
(a) To save the plaintiff from being injured by the unavoidable
duration of the suit, without, however, deterring the defendant from
the defence of what he honestly believes to be his rights, a judgment
against the defendant requires him to restore Omnis Causa, i. e. omne
quod habiturus esset actor, si statim judicii accepti tempore res ei
reddita fuisset, Dig. 6, 1, 20, all that the plaintiff would have had if
restitution had been made to him at the moment of litis contestatio.
This implies the restitution of Fructus, all the gain of whatever
nature that the defendant has derived from the fact of possession. If
the object claimed is a sum of money, the defendant, notwithstanding
the absence of mora, must pay Interest from the date of litis
contestatio, cf. 2 § 280, comm.
(&) After litis contestatio the defendant, the bona fide possessor as
well as the mala fide possessor, the debtor free from mora as well as
the debtor chargeable with mora, is liable for Culpa of every kind
and degree, and responsible for the destruction and deterioration
thereby occasioned. E.g. he is liable for neglected fruits (fructus
percipiendi) as well as for fructus consumpti and fructus extantes,
for the omission to collect the fruits is a piece of culpable supine-
ness.
(c) Litis contestatio in actiones stricti juris fixes the moment to be
regarded in the valuation of the plaintiff's interest in the subject of
dispute (litis aestimatio). In bona fide actions this date is given by
the moment of Condemnatio. See 4 §§ 45-52, comm.
4. Litis contestatio affects the character of the object of litiga-
tion, which it converts into res Litigiosa, thereby rendering unlawful
its alienation by the plaintiff or defendant. See 4 § 117 a.
WHITTUCK J) (J
402
DE OBLIGATIONIBVS [in. § 182.
& 182. Transeamus nunc ad § 182. We proceed to obliga-
obLationes quae ex delicto tions which originate m delict
dederit, imuriam commiserit ; tractual obli ^ are divided
quarum omnium rerum uno into four classes, as we have ex-
genere cons*stit obligatio, cum lained above.
ex contractu obligationes in nil
genera diducantur, sicut supra
exposuimus.
All actions suppose the violation of some right, but they are not
necessarily founded on a wrong or delict. Thus a possessor of
another man's property, though no wrong be imputable to him, is
subject to vindicatio. Actions on contract, however, suppose a
wrong, namely, a wrongful act or omission constituting a breach o
contract, but the plaintiff recovers damages with the object merely o
putting him in the same position as if the contract had been fulfilled.
Delict (delictum, maleficium), on the other hand, is generally used
in a limited sense, to signify any wrong or unlawful act in itself,
such as theft or assault, regarded as specially injurious apart from
the loss which it causes. In early law indeed the default of a debtor
is treated as if it were a delict, but in later times the acts which the
law designates as delicts involve a violation not of a jus in personam
or right available against a determinate person, but of a jus m rem
or right available against all the world, such acts as are considered
especially injurious to the individual or to the community.
Delicts or wrongs came to be divided into public and private.
Public wrongs are those delicts called crimes, private wrongs are
those delicts which in early times were left to private vengeance, for
which an action brought by the injured party against the wrongdoer
was afterwards substituted. Injuries, which in modern law are
punished exclusively as crimes, could throughout the history of
Koman law be vindicated by the injured party as private wrongs.
Crimes have been defined to be such unlawful acts as are injurious in
the first instance to the State ; civil injuries, such as are harmful,
principally or exclusively, to private individuals. But this definition
is not satisfactory, because all or most crimes are injurious to private
individuals, and all or most civil injuries are harmful to the com-
munity. A better definition is the following : Crimes are thos.
unlawful acts which the state itself visits with punishment, consider-
ing them to be specially injurious to its interests ; private delicts are
unlawful acts or offences which the injured party may himself vm
cate by action. The same unlawful act which in one stage of society
is pursued as a private delict may, at a subsequent stage, be punished
in. § 182.] OBLIGATIONES EX DELICTO 403
as a crime. So, again, in later Eoman law the same delictal act, e. g.
furtum, might be pursued either as a crime or as a civil injury.
The following may be taken as a kind of rough classification of
actions. Every right of action arises out of a violation of some
positive or negative duty.
(1) A violation of a positive duty to perform or negative duty of
forbearance may be a violation of a jus in personam, and found an
action for breach of contract, called an action ex contractu, or may be
the violation of some right which is regarded as if it were the breach
of a contract, giving rise to an actio quasi ex contractu.
(2) A violation of a negative duty, that is, duty to abstain, may be
a violation of a jus in rem, which, if it is an offence called delict,
gives rise to an action enforceable by the individual aggrieved, or
similarly, if the violation is one which, though not strictly a delict,
is treated as if it were so, it gives rise to an actio quasi ex delicto.
(3) Or violations of duties giving rise to actions and other remedies
which are founded simply on the fact of ownership or possession,
such as vindicatio, actio Publiciana, the possessory interdicts.
But there are many miscellaneous actions which cannot be easily
brought under any of the above heads.
Actions ex contractu seek to enforce both the rights immediately
founded on a contract and those created by a party's subsequent
unlawful intention (dolus) or carelessness (culpa) in relation to the
contract.
Eeal actions and actions ex contractu are simply restitutory in
their object ; they imply that a defendant HAS something which he
ought not to have : withholds from the plaintiff some thing or
service of pecuniary value to which the plaintiff is entitled. Actions
ex delicto do not necessarily imply that the defendant HAS what
he ought not to have ; they necessarily impute unlawful' conduct
(dolus or culpa) to the defendant, § 211, and imply imputability, or
responsibility for such conduct.
In respect of contracts Culpa is distinguished as of different
degrees ; and sometimes a higher, sometimes a lower degree is
capable of generating obligation. In respect of delicts, that is, the
delict of damage to property, Culpa is not distinguished by grada-
tions ; any neglect of ordinary care suffices to generate obligation.
The object of an action ex delicto may be either simply to
recover a penalty (e. g. actio furti), or partly to recover a penalty and
partly to obtain damages (e. g. actio vi bonorum raptorum), or it may
be to obtain personal satisfaction for the injury caused by the offence
(e. g. actio injuriarum) ; but we shall find that in every case a
delictal action has characteristics, which do not belong to a merely
restorative action. (Cf. Inst. 4, 6, 17 and 18.) Keal actions and
D d 2,
404
DE OBLIGATIONIBVS [m. §§ 183-208.
actions ex contractu are not Delictal but Civil, Conservative, or
Kestorative ; they maintain the fortunes of both parties at their
original level ; at the level destroyed or lowered by the defendant's
act or omission. We have before used the term Civil to distinguish
the Private code from the Political code and the Criminal code. We
here take it in a narrower sense to distinguish that part of the
Private code which deals with Domestic relations and the Law of
Property, including Obligation ex contractu, from that part which
deals with Obligation ex delicto, which latter part has more resem-
blance to the Criminal code. The jurisprudence of delicta privata
forms a sort of intermediate between Civil jurisprudence, in this
narrower sense, and Criminal jurisprudence which relates to delicta
publica.
§183. Furtorumautem genera
Ser. Sulpicius et Masurius Sa-
binus mi esse dixerunt, mani-
festum et nee manifestum,
conceptum et obZatum ; Labeo
duo, manifestum (et} nee
manifestum; nam conceptum
et oblatum species potius ac-
tionis esse furto cohaerentes
quam genera furtorum ; quod
sane uerius uidetur, sicut in-
ferius apparebit. Inst. 4, 1, 3.
§ 184. Mam/estum furtum
quidam id esse dixerunt, quod
dum fit deprehenditur. alii
uero ulterius, quod eo loco de-
prehenditur, ubi fit, ueluti si
in oliueto oliuarum, in uineto
uuarum furtum factum est,
quamdiu in eo oliueto aut
uineto fur sit ; aut si in domo
furtum factum sit, quamdiu in
ea domo fur sit. alii adhuc
ulterius eo usque manifestum
furtum esse dixerunt, donee
perferret eo, quo perferre fur
destinasset. alii adhuc ulterius,
quandoque earn rem fur tenens
uisus fuerit ; quae sententia
non optinuit. sed et illorum
§ 183. Thefts are divided by
Servius Sulpicius and Masurius
Sabinus into four kinds, theft
manifest and not manifest, the
possession of stolen goods dis-
covered upon search, and the in-
troduction into a house of stolen
goods. Labeo makes only two
kinds, theft manifest and not
manifest, because the possession
and introduction of stolen goods
are not kinds of theft, but rather
circumstances giving rise to
special actions connected with
theft ; and this seems the better
opinion, as will presently appear.
§ 184. Manifest theft is limited
by some to detection in the act
of taking; by others extended
to detection while the thief is in
the place where the theft is com-
mitted ; for instance, if olives
are stolen from an oliveyard, or
grapes from a vineyard, while
the thief is in the oliveyard, or
vineyard ; or if a theft is com-
mitted in a house, while the
thief is in the house. Others
extend it to detection before the
thief has carried the goods away
to the place where he intends to
deposit them ; others to detection
while the thief has the goods in
his hands. The fourth opinion
has not been adopted, and the
in. §§ 183-208.]
DE FVRTIS
405
sententia, qui existimauerunt,
donee perferret eo quo fur
destinasset, deprehensum fur-
turn manifestum esse, ideo non
uidetur probari, qum magnam
recipit dubitationem, utmm
unius diei an etiam plurium
dierum spatio id terminandum
sit. quod eo pertinet, quia
saepe in aliis ciuitatibus sub-
reptas res in alias ciuitates uel
in alias prouincias destinant
fares perferre. ex duabus itaque
superioribus opinionibus alter-
utra adprobat-ur; magis tamen
plerique posteriorem probant.
Inst. 1. c.
§ 185. Nee manifestum fur-
turn quid sit, ex iis quae
diximus intellegitur. nam quoc£
manifestum non est, id nee
manifestum est. Inst. 1. c.
§ 186. Conceptum furtum
dicitur, cum apud aliquem
testibus praesentibus furtma
res quaesita et inuenta sit. nam
in eum propria &ctio constituta
est, quamuis fur non sit, quae
appellatur concepti.
Inst. 4,1,4.
§ 187. Oblatum furtum dici-
tur, cum res furtiua tibi ab
aliquo oblata sit eaque apud
te concepta sit ; ittique si ea
mente data tibi fuerit, ut apud
te potius quam apud eum qui
dederit conciperetur. nam tibi,
apud quern concepta est, pro-
pria aduersus eum qui optulit,
quamuis fur non sit, constituta
est actio, (quae) appellatur
oblati. Inst. 1. c.
§ 188. Est etiam prohibiti
furti (actio} aduersus eum qui
furtum quaerere uolentem pro-
hibuerit. Inst. 1. c.
§ 189. Poena manifest! furti
third opinion that, until the thief
has carried the stolen goods to
their place of destination, his
theft may be a manifest one, is
also impugned on the ground of
the uncertainty whether one day
or several is the limit of the
time within which he must be
detected ; for a thief often intends
to carry the goods he has stolen
in one city into another city or
province. The first and second
opinions are commonly adopted,
and more generally the second.
§ 185. What is not manifest
• theft will be understood from
what we have said about manifest
theft, for what is not the one is
the other.
§ 186. The discovery of stolen
goods, when a person's premises
are searched in the presence of
witnesses, makes him liable, even
though innocent of theft, to a
special action for receiving stolen
goods called actio concepti.
§187. To introduce stolen goods
is to pass them off to a man, on
whose premises they are dis-
covered, with the intent that they
should be discovered on his pre-
mises rather than on those of the
introducer. The man on whose
premises they are found may sue
the passer off, though innocent of
theft, in an action for the intro-
duction of stolen goods called
actio oblati.
§ 188. An action for prevention
of search may be brought against
the man who prevents a person
from searching on his premises
for stolen goods.
§ 189. The punishment pro-
406
DE OBLIGATIONIBVS [in. §§ 183-208.
ex lege xn tabularum capitalis
erat. nam liber uerberatus
addicebatur ei cui furtum fe-
cerat ; utrum autem seruus
efficeretur ex addictione, an
adiudicati loco constitueretur,
ueteres quaerebant. in seruum
aeque uerberatum animaduer-
tebatur. sed postea inprobata
est asperitas poenae et tarn ex
serui persona quam ex liberi
quadrupli actio praetoris edicto
constituta est. Inst. 4, 1, 5.
§ 190. Nee manifest! furti
poena per legem (xii) tabu-
larum dupli inrogatur, eamque
etiam praetor conseruat.
Inst. 1. c.
§ 191. Concept! et oblati
poena ex lege xn tabularum
tripli est, eaque similiter a
praetore seruatur.
§ 192. Prohibit! actio quad-
rupli est ex edicto praetoris
mtroducta; lex autem eo no-
mine nullam poenam constituit.
hoc solum praecipit, ut qui
quaerere uelit, nudus quaerat,
lic-io cinctus, lancem habens ;
qui si quid inuenerit, iubet id
lex furtum manifestum esse.
§ 193. Quid sit autem licium,
quaesitum est. sed uerius est
consuti genus esse, quo neces-
sariae partes tegerentitr. quae
res [lex tota] ridicula est. narn
qui uestitum quaerere prohibet,
is et nudum quaerere prohibi-
turus est, eo magis quod ita
vided by the law of the Twelve
Tables for manifest theft was
capital ; a freeman was first
scourged and then assigned, by
judgment of the magistrate, to
the person from whom he had
stolen (whether made his slave by
the assignment, or reduced to the
condition of an insolvent judg-
ment debtor, was a subject of
controversy among the republican
lawyers) ; aslave was also punished
by scourging. But later ages dis-
approved of the severity of this
punishment, and theft, whether
by a slave or by a freeman, was
punished by the praetorian edict
with fourfold damages.
§ 190. Not manifest theft is
punished by the law of the Twelve
Tables with double damages,
which penalty the praetor has
retained.
§ 191. The penalty for the dis-
covery or the introduction of
stolen goods is by the law of the
Twelve Tables triple damages,
a penalty which the praetor has
also retained.
§ 192. Prevention of search
renders liable to fourfold damages,
a penalty which the edict of the
praetor first ordained. The Twelve
Tables inflicted no penalty for
such an offence, but directed that
the person wishing to search must
be naked, only wearing a girdle,
and carrying a platter in his hands ;
and if anything was thus dis-
covered the law of the Twelve
Tables declares it to be manifest
theft.
§ 193. What the girdle was is
doubted, but it seems to have been
a covering for the loins. The
whole of this enactment of the
Twelve Tables is nugatory, for
he who prevents a man from
searching in his clothes would pre-
vent him from searching naked,
in. §§ 183-208.]
DE FVETIS
407
quaesita re (e£) inuenta maiori
poenae subiciatur. deinde quod
lancem siue ideo haberi iubeat,
ut manibus occupatis nihil
subiciat, siue ideo, ut quod
inueneritf ibi inponat, neutrum
eorum procedit, si id quod
quaer&iur, eius magnitudinis
aut naturae sit, ut neque subici
neque ibi inponi possit. certe
non dubitatur, cuiuscumque
materiae sit ea lanx, satis legi
fieri.
§ 194. Propter hoc tamen,
quod lex ex ea causa mani-
festum furtum esse iubet, sunt
qui scribunt furtum manifestum
aut lege (intellegi) aut natura :
lege id ipsum de quo loquimur,
natura illud de quo superius
exposuimus. sed uerius est
natura tantum manifestum fur-
tum intellegi. neque enim lex
facere potest, ut qui manifestus
fur non si£, manifestus sit, non
magis quam qui omnino fur
non sit, fur sit, et qui adulter
&ut homicida non sit, adulter
uel homicida sit. at illud sane
lex facere potest, ut proinde
aliquis poena teneatur atque
si furtum uel adulterium uel
homicidiumadmisisset,quamuis
nihil eorum admiserit.
§ 195. Furtum autem fit non
solum cum quis intercipiendi
causa rem alienam amouet, sed
generaliter cum quis rem alie-
nam inuito domino contrectat.
Inst. 4, 1, 6.
§ 196. Itaque si quis re quae
apud eum deposita sit utatur,
furtum committit. et si quis
especially as in such a search the
finding of stolen goods would
subject him to a heavier penalty.
Besides, whether the platter is to
be held by the searcher in order
that his hands being engaged in
holding it he may not bring any-
thing into the house, or in order
that what is found may be placed
thereupon, neither of these rea-
sons can be alleged when the thing
searched for is of such a size or
nature that it could not be brought
into the house by hand, nor placed
on the platter. It is not disputed
that a platter of any material satis-
fies the requirement of the Tables.
§ 194. On account of the enact-
ment that a discovery in such a
search is manifest theft, some
writers say that manifest theft
is of two kinds, statutory or
actual : statutory being that of
which we have just been speaking,
actual being that kind of manifest
theft which has been previously
explained. But in truth, the
only mode of manifest theft is the
actual one, for law cannot turn
a not manifest thief into a mani-
fest thief, any more than it can
turn a man who is not a thief
into a thief ; or make an adulterer
or homicide out of a man who has
not killed or committed adultery.
What a statute can accomplish
is this, that a person shall be
subject to a penalty just as if he
had committed theft, adultery, or
homicide, although he have not
committed any of those offences.
§ 195. Theft is not simply con-
fined to the carrying away the
property of another with intent
of appropriation, but embraces
any kind of physical handling of
a thing belonging to another
against the will of the owner.
§ 196. Thus, to use a thing
committed to one's keeping as a
deposit, or to put a thing that is
408
DE OBLIGATIONIBVS [in. §§ 183-208.
utendam rem acceperit eamque
in alium usum transtulerit,
furti obligatur, ueluti si quis
argentum utendum acceperit,
quasi amicos ad ce^am inuita-
turus, et id peregre secum
tulerit, aut si quis equum
gestandi gratia commodatum
longius aliquo duxerit, quod
ueteres scripserunt de eo qui
in aciem perduxisset. Inst. 1. c.
§ 197. Placuit tamen eos,
qui rebus commodatis aliter
uterentur, quam ufendas ac-
cepissent, ita furtum commit-
tere, si intellegant id se inuito
domino facere, eumque, si in-
tellexisset, non permissurum ;
at si permissurum credant,
extra furti crimen uideri; op-
tima sane distinctions, quod
furtum sine dolo malo non
cornmittitur. Inst. 4, 1, 7.
§ 198. Sed et si credat aliquis
inuito domino se rem contre-
ctare, domino autem uolente id
fiat, dicitur furtum non fieri,
unde illud quaesitum [et pro-
batum] est, cum Titius seruum
meum sollicitaum't, ut quasdam
res mihi subriperet et ad eum
perferret, (et seruus} id ad me
pertulerit, ego, dum uolo Titium
in ipso delicto deprehendere
permism'm se?mo quasdam res
ad eum perferre, utrum furti
an serui corrupt^ iudicio tenea-
tur Titius mihi, an neutro.
responsum neutro eum teneri,
furti ideo quod non inuito me
res contreetaicerit, serui cor-
rupti ideo quocZ deterior seruus
factus non est. Inst. 4, 1, 8.
§ 199. Interdum autem etiam
liberorum hominum furtum fit,
lent to one for use to a different
use than that for which it was
lent, is theft ; to borrow plate,
for instance, on the representation
that the borrower is going to
entertain his friends, and then to
carry it away into the country ;
or to borrow a horse for a mere
ride, and then to take it far away
out of the neighbourhood ; or, as
in the case described by the old
lawyers, to take it into battle.
§ 197. It is held, however, that
putting a thing lent for use to
a different use than the lender
contemplated is only theft if the
borrower knows it to be contrary
to the will of the owner, and that,
if he had notice, he would refuse
permission ; but if he believes
that the owner would give per-
mission, it is not theft; and the
distinction is just, for there is no
theft without unlawful intention.
§ 198. But even to deal with
a thing in the belief that you are
acting against the will of the
owner, if the owner is in fact
consenting to your doing so,
is said not to amount to theft ;
whence a question arises, if Titius
solicits my slave to steal my
property, and convey it to him,
and my slave informs me of it,
and I, wishing to detect Titius in
the act, permit my slave to carry
my goods to him ; it has been
questioned whether either an
action of theft or one for corrupt-
ing a slave can be maintained
against Titius. The answer (re-
sponsum) is that neither action
is maintainable ; not the action
of theft, because his dealing with
my property was not an act done
against my will ; not the action
for corrupting a slave, because the
slave was not in fact corrupted.
§ 199. Sometimes there may
be a theft even of free persons ;
in. §§ 183-208.]
DE FVRTIS
409
ueluti si quis liberorum nostro-
rum qui in potestate nostra sint,
siue etiam uxor quae in manu
nostra sit, siue etiam iudicatus
uel auctoratus meus subreptus
/ueri£. Inst. 4, 1. 9.
§ 200. Aliquando etiam suae
rei quisque furtum committit,
ueluti si debitor rem quam
creditor^ pignori dedit sub-
traxerit, uel si bonae fidei
possessor! rem meam possidenti
subripuerim. undeplacuiteum,
qui seruum suum quern alius
bona fide possidebat ad se re-
uersum celauerit, furtum com-
mittere. Inst. 4, 1, 10.
§ 201. Rursus ex diuerso
inferdum alienas res occupare
et usucapere concessum est, nee
creditur furtum fieri, ueluti res
hereditarias, quarum heres non
est nactus possessionem, nisi
necessarius heres extet ; nam
necessario herede extawte pla-
cuit nihil pro herede usucapi
posse, item debitor rem, quam
fiduciae causa creditor! manci-
pauerit aut in iure cesserit,
secundum ea quae in superiore
commentario rettulimus, sine
furto possidere et usucapere
potest.
§ 202. Interdum furti tenetur
qui ipse furtum non fecerit,
qualis est cuius ope consilio
furtum factum est. in quo
numero est qui nummos tibi
excussit, ut eos alius subriperet,
uel obstitit tibi, ut alius sub-
riperet, aut oues aut boues tuas
fugauit, ut alius eas exciperet.
et hoc ueteres scripserunt de eo
qu^ panno rubro fugauit armen-
as, for instance, of a child in my
power, of a wife in my hand, or
even of my judgment debtor,
or of my hired gladiator, should
they be secretly removed from
my control.
§ 200. A man may sometimes
even steal his own property ; as,
for instance, a debtor who purloins
the goods which he has pledged to
a creditor, or an owner who sur-
reptitiously takes away his own
property from a bona fide pos-
sessor of it ; and accordingly it
has been held, that concealment
by the owner of the fact of his
slave having returned to him,
from one who had possessed him
in good faith, amounted to theft.
§ 201. Conversely, property
belonging to another may some-
times be seized and acquired by
usucapion without committing
theft ; hereditaments, forinstance,
before an heir has obtained pos-
session, except in the case of a
necessary heir ; for where there is
a necessary heir it is settled law
that no usucapion as quasi-heir is
possible (2 § 58). Also a debtor,
having conveyed property on
trust to his creditor by manci-
pation or surrender before the
magistrate, as I mentioned in the
preceding book, may, without
committing theft, repossess it and
acquire new ownership thereof
by usucapion (2 § 59).
§ 202. In some cases theft may
be chargeable on a person who is
not the actual perpetrator, as on
one, by whose aid and abetment
a theft has been committed ; to
which class belongs the man who
knocks out of your hand money
for another to pick up, or stands
in your way that another may
snatch it, or scatters your sheep
or oxen that another may steal
them, like the man in the old
410
DE OBLIGATIONIBYS [in. §§ 183-208.
turn, sed si quid per lasciuiam
et non data opera, ut furtum
committeretur, factum sit, uide-
bimus &n utilis actio dari
debeat, cum per legem ^quiliam
quae de damno lata {est} etiam
culpa puniatur. Inst. 4, 1,11.
§ 203. Furti autem actio ei
conpetit cuius interest rem
saluam esse, licet dominus non
sit. itaque nee domino aliter
conpetit, quam si eius infersit
rem non perire. Inst. 4, 1, 13.
§ 204. Vnde constat credi-
torem de pignore subrepto furti
agere posse ; adeo quid em, ut
quamm's ipse dominus, id est
ipse debitor, earn rem subripue-
rit, nihilo minus creditori con-
petat actio furti. Inst. 4, 1, 14.
§ 205. Item si fullo polienda
curandaue aut sarcinator sar-
cienda uestimenta mercede
certa acceperit eaque furto
amiserit, ipse furti habet ac-
tionem, non- dominus, quia
domini nihil interest ea non
periisse, cum iudicio locati a
fullone aut sarcinatore suum
consequi possit, si modo is
fullo aut sarcmator rei prae-
standae sufficiat ; nam si sol-
uendo non est, tune quia ab eo
dominus suum cousequi non
potest, ipsi furti actio conpetit,
quia hoc casu ipsius interest
rem saluam esse.
Inst. 4, 1, 15.
§ 206. Quae de fullone aut
sarcinatore diximus, eadem
transferemus et ad eum cui
rem commodauimus. nam ut
books, who waved a red cloth to
frighten a herd. But if the same
thing were done as a frolic, with-
out the intention of committing
a theft, we will consider whether
a praetoiian form of action (in
extension of the lex Aquilia)
may not be maintainable, since
the Aquilian statute relating to
damage makes even negligence
penal.
§ 203. The action of theft is
maintainable by the person in-
terested in the preservation of the
property, although he is not the
owner; and so even the owner
cannot maintain it unless he has
an interest in the safety of the
thing.
§ 204. Hence when a thing
pledged is stolen, the creditor can
bring it, so much so that he can
even maintain it against the
owner or debtor who surrepti-
tiously takes away from him the
thing he has pledged.
§ 205. So if clothes are de-
livered to be cleaned or finished or
mended for a certain remunera-
tion, and then are stolen, the
fuller or tailor has the action,
and not the owner ; for the owner
is not interested in the loss, since
he has his action on the contract
of letting against the fuller or
tailor to recover the value ; sup-
posing always, that the fuller or
tailor has sufficient means to
make the loss good. For if the
latter is insolvent, then as the
owner cannot recover what he has
a right to claim from him, he can
himself maintain the action of
theft against the thief; because,
in this hypothesis, he is interested
in the loss of the property.
§ 206. What has been said of the
fuller and tailor applies to the bor-
rower of a thing (commodatarius) ;
for as on account of the payment
m. §§183-208.]
DE FVRTIS
411
illi mercedem capiendo custo-
diam praestant, ita hie quoque
utend-i commodum percipiendo
similiter necesse habet custo-
diam praestare. Inst. 4, 1, 16.
§ 207. Sed is apud quern
res deposita est custodiam non
praestai tantumque in eo ob-
noxius est, si quid ipse dolo
(malo) fecerit. qua de causa
(si) res ei subrepta fuerit, quio.
restituendae eius nomine de-
positi non tenetur nee ob id
eius interest rem saluam esse,
furti [itaque] agere non potest,
sed ea actio domino conpetit.
Inst. 4, 1, 17.
§ 208. In summa sciendum
est quaesitum esse, an inpubes
rem alienam amouendo furtum
faciat. plerisque placet, quia
furtum ex ad/ectu consistit, ita
demum obligari eo crimine
inpuberem, si proximus puber-
tati sit et ob id intellegat se
delinquere. Inst. 4, 1, 19.
the former receive they are made
responsible for safe custody of the
thing, so on account of the ad-
vantage the borrower derives from
the use of the thing he is likewise
made responsible for its safe
custody.
§ 207. But as a depositary is not
answerable for the safe custody
of the thing deposited, being only
liable for his own fraud, so, if the
thing is stolen from him, being
not compellable to make restitu-
tion by action of deposit, he is not
interested in the thing being safe ;
and therefore cannot maintain
the action of theft which is only
maintainable by the owner of the
thing.
§ 208. Finally, it is a question
whether if any one below the age
of puberty takes the property of
another, he commits a theft ; and
most jurists agree that as theft
depends on intention, one below
the age of puberty is not able to
be charged with it unless, being
near to that age, he understands
that he is committing a delict.
Theft in modern systems of jurisprudence is a crime, that is,
belongs to the penal or criminal code. In Roman law, as in other
early systems, it is a private injury, and treated as a subject of the
civil code. This was recognized by the law of the Twelve Tables,
which established the penalty for furtum nee manifestum, § 190, and
allowed a compromise or composition for theft, that is, allowed the
penalty thereby engendered to be extinguished by private agreement
between the party wronged and the wrongdoer.
§ 184. Aulus Gellius gives a fragment of Sabinus which combines
the first and third definition of furtum manifestum. Manifestum
auteni furtum est, ut ait Masurius, quod deprehenditur dum fit.
Faciendi finis est, cum perlatum est quo ferri coeperat, 9, 18, 1.
' Manifest theft is that which is detected in the act. The act is
finished when the removal of the goods to the place intended is
completed.' Justinian confirms the third definition, Inst. 4, 1, 3.
§ 189. The reason why furtum manifestum was subjected to a
heavier penalty than furtum nee manifestum was not because the
412 DE OBLIGATIONIBVS [in. §§ 183-208.
barbarous legislator supposed that detection in the act was an
aggravation of the offence, but because he wished, by the amplitude
of the legal remedy offered, to induce the aggrieved party not to
take the law into his own hands and inflict summary vengeance on
the offender, particularly as it was lawful to kill a nocturnal thief,
or one who during the day defended himself with a weapon, Gel^.
11, 18, 6, 7. In the infancy of society it is an important object to
the legislator to induce an injured person to have recourse to the
public tribunals instead of righting himself, that is to say, constituting
himself both lawgiver and judge.
That such was really the motive of the legislator we have historic
evidence in the declaration of Rotharis, ruler of the Langobards,
A. D. 643. He gives the relatives of the slain their election be-
tween the primitive vengeance for blood (feud or vendetta) and a
composition or pecuniary fine (wergeld or poena) to be recovered
by action before the public tribunals. He says that he fixes a high
fine in order to induce plaintiffs to forgo their right of feud ; and
implies that he would gladly have abolished the right of feud or
private war, but felt that it was too deeply rooted in the habits of
his tribe to be extirpated by legislation. Bethmann-Hollweg, Der
Germ. Civ. Process, § 60.
This writer supposes, Der Rom. C. P., § 96, that the praetorian
action Furti manifesti had a Fictitious formula, 4 § 32, and suggests
the following:
Demonstratio : Quod Numerius Negidius Aulo Agerio furtum
manifestum fecit paterae aureae,
Fictio : Si ob earn rem Numerium Negidium ex lege verberari
itemque Aulo Agerio addici oporteret,
Condemnatio : Quanti ea res fuit, tantae pecuniae, judex, Nume-
rium Negidium Aulo Agerio quadruplum condemnato : Si non paret,
absolvito.
According to Gellius a slave after having been scourged was
thrown from the Tarpeian rock, and some writers think that Gaius
stated this fact in the above passage.
§ 193. We must distinguish between furtum conceptum with its
threefold penalty, § 191, and furtum lance et licio conceptum. Ea
quoque furta quae per lancem liciumque concepta essent, proinde ac
si manifesta forent, vindicaverunt, Gellius, 11, 18, 9. 'Possession
of stolen goods discovered on search with the platter and girdle was
punished as theft detected in the act.' Cf. Inst. 4, 1, 4.
Traces of the word ' conceptum ' occur in a fragment of the
Twelve Tables, vi, 7 : Tignum junctum aedibus vineave et concapit
ne solvito, * Timber built into a house or vineyard of another man
and discovered there by the owner must not be severed : ' where et
in. §§ 183-208.] DE FVRTIS 413
concapit represents either et conceptum or qui concipiet. (On the
grammatical form — conceptum — see Eoby 2, p. 215, n. 1.)
The search with a platter and girdle was probably a custom derived
from Greece, for a similar formality is described by Plato. Leges, 1 2, 7.
In the later period of Eoman law, as in modern Europe, the
search for stolen goods was not conducted by the private party, but
by public officers. In England the object is effected by a search
warrant. Upon the information on oath that a party has probable
cause to suspect that his goods have been stolen, and are concealed
in a certain dwelling-house, and on his showing the cause of his
suspicion, a justice of the peace may grant a warrant authorizing to
enter and search for the said goods, and to attach the goods and the
party in whose custody they are found, and bring them before him,
that he may give an account how he came by them, and be dealt with
according to law. The warrant is directed to a constable or other
public officer and not to any private person, though it is proper that
the party complaining should be present as assistant because he knows
his goods. As touching the party that had custody of the goods, if they
were stolen, but not by him but by another that sold and delivered
them to him (furtum oblatum), if it appear that he was ignorant that
they were stolen, he may be discharged as an offender and bound
over to give evidence as a witness against him that sold them.
§ 195. The same definition of theft is given by Paulus. Fur est
qui dolo malo rem alienam contrectat, Sent. E. 2, 31, 1. 'A thief is
he who with evil intention handles (lifts, moves, touches) the pro-
perty of another.' Justinian gives a different definition. Furtum
est contrectatio rei fraudulosa, lucri faciendi causa vel ipsius rei, vel
etiam usus ejus possessionisve, Inst. 4, 1, 1. 'Theft is the fraudulent
handling of a thing with the object of acquiring gain either from the
thing itself or from its use, or from possession of it.'
It may be observed that Justinian does not say with Paulus,
rei alienae, because a man may steal his own property, as when a
pledger steals from a pledgee or an owner from a usufructuary. So,
by English law, to take a man's own goods out of the hands of a
bailee, if the taking have the effect of charging the bailee, is larceny.
The usus of a thing is stolen when the owner deprives the usu-
fructuary of it, or when a pledgee unlawfully uses a pledge. Si
creditor pignore utatur, furtum committit, Inst. 4, 1, 6.
Cases of Possessio being appropriated are when a thing pledged is
taken out of the pledgee's possession by the owner, or when an owner
of a thing surreptitiously deprives the bona fide possessor of his
possession, § 200, for though such possessor has no title to the thing,
his possession is recognized, till he is evicted, and he may have claims
against the owner on account of impensae and on other grounds.
414 DE OBLIGATIONIBVS [in. §§ 183-208.
In English law larceny is defined to be the unlawful taking and
carrying away of things personal (asportatio) with intent to deprive
the right owner of the same and to make them the property of the
taker. To constitute larceny the original taking of possession must be
unlawful : therefore, if the owner deliver his property to a person to
hold for him, the subsequent appropriation of it by the latter, though
an offence and a breach of faith, is not larceny, because the original
taking was lawful. But it is larceny if the delivery was obtained by
fraud, i. e. with an original design and pre-arranged plan to deprive
the owner of his property and convert it to the use of the taker. The
possession is then unlawful in its inception. Again, if delivery does
not divest the owner of the legal possession, appropriation by the
taker constitutes possession unlawful in its inception and so is
larceny. In this respect a servant (e. g. a shepherd, carter, porter,
butler, clerk) is to be distinguished from a bailee, for the servant is
regarded as not possessing, but merely as the instrument of the
owner's possession, and so he may be guilty of larceny of the thing.
(See Pollock and Wright, Possession in the Common Law, Pt. III.)
Roman law, however, did not require an unlawful inception of
possession for constituting furtum, as is shown by the fact that the
pledgee, who has lawful possession, is guilty of theft, if he make use
of the pledge. Had it done so, however, the appropriation of the
owner's property by commodatarius, depositarius, or conductor rei
would have constituted an unlawful inception of possession and so
have been furtum, since Roman law, differing in this respect from
English, does not as a rule transfer possession to such bailees but
only detention. But as a matter of fact in Roman law the question
whether a person guilty of ' contrectatio rei fraudulosa ' had or had
not been in previous possession of the thing was never entertained
(cf. Stephen, Hist, of Criminal Law in England, 1, p. 30, &c.).
§ 198. Justinian decided that the attempt to corrupt a slave was as
criminal as his actual corruption, and made the offender liable to be
sued for theft and for corrupting a slave, Inst. 4, 1, 8.
§ 201. Usucapion of the property of a voluntary heir, and usu-
receptio, or usucapion of the property of a mortgagee, have been
mentioned in the preceding book. See 2 §§ 52-60.
§ 202. A person who is present aiding and abetting when an offence
is committed but is not the actual perpetrator is called, in English law,
a principal in the second degree. He who procures or abets another
to commit an offence but is absent at the time of the commission is
called an accessory before the fact. Their punishment is usually
the same as that of the principal in the first degree. An accessory
after the fact is one who, knowing an offence to have been committed
by another, receives, harbours, or assists the offender. For an ex-
in. §§ 183-208.] DE FVRTIS 415
planation of the distinction between actio legis aquiliae directa and
utilis see § 219, comm.
§ 203. When a sale is complete, property does not, by Eoman law,
pass to the vendee before delivery, although the thing sold is forth-
with at the risk of the vendee. If it is stolen before delivery, in
spite of the rule that the action of theft is maintainable by the person
interested, the vendee cannot sue in his own name, but the vendor is
compellable to cede his actions and the vendee sues in the name of
the vendor, Dig. 47, 2, 14, 1. But a person who is neither owner, nor
has any real right in the thing may, as we have seen, have sufficient
interest to enable him to maintain actio furti, though a person could
not under these circumstances make use of the condictio furtiva.
The quadruple and double damages for furtum manifestum and
nee manifestum were purely penal. The owner could further recover
the thing stolen by a real action (vindicatio), maintainable against
any one in possession of the stolen property, or damages in a personal
action (condictio furtiva), Inst. 4, 1, 20. The granting of a personal
action in this case, with an intentio declaring that the thief was
bound to convey the property (dare oportere), was anomalous, because
the property of the thing stolen was not in the thief but in the
owner, and so could not be conveyed to the latter, 4 § 4.
If the thing stolen had been destroyed, or if, being money, it had
been spent or mixed with money of the thief, the property of the
plaintiff would have been in fact extinguished and condictio would
be a suitable action. If the property existed in the hands of the
thief or could be traced, vindicatio would be maintainable. The
object of the law in allowing the plaintiff in any case to sue by con-
dictio was to relieve him from the necessity of ascertaining whether
his property was safe or had been consumed. If we ask why, instead
of using the intentio, Si paret dare oportere, 4 § 4, which might be
inconsistent with the truth, the plaintiff did not use the formula,
Quidquid paret dare facere oportere, which, as including compensa-
tion or simple restitution of possession, would always be consistent
with truth ; the answer is probably what Savigny has suggested,
namely, the intention of the legislator to subject the defendant to the
sponsio poenalis, the additional forfeiture of a third of the sum in
litigation. It is true that this is only mentioned as incidental to
a condictio for pecunia certa credita, 4 § 171, but the penalty may
have also been recoverable in a claim for certain money stolen
(condictio furtiva).
According to Lenel, p. 263, the following would be the kind of
formula for the actio furti nee manifesti :
Si paret Aulo Agerio a Numerio Negidio, opeve consilio Numerii
Negidii, furtum factum esse paterae aureae ;
416 DE OBLIGATIONIBVS [in. §§ 183-208.
Quam ob rem Numerium Negidium pro furedamnumdecidereoportet,
Quanti ea res fuit, cum furtum est, tantae pecuniae duplum judex
Numerium Negidium Aulo Agerio condemna : si non paret absolve.
The plaintiff in theft had in the later period of Koman law the
option of proceeding by civil action or by criminal prosecution, and
Ulpian informs us that the latter was the usual course, Dig. 47,
2, 93.
§ 209. Qui res alienas rapit, § 209. Kapine or robbery is
tenetur etiara furti. quis enim chargeable as theft, for who more
magis alienam rem inuito handles the property of another
domino contrectat quam qui against the will of the owner than
<ui> rapit 1 itaque recte dictum *he ro^bef ?, who has been well
est eum inprobum furem esse. denominated a shameless thief,
sed propriam actionem eius However, as a special remedy for
i T i • i • • • i this offence the praetor has intro-
delM nomine praetor intro- duced the ^J for ine with
duxit, quae appellatur ui bono- violence . which may be brought
rum raptorum, et est mtra within a year for four times the
annum quadrupli [actio J, post vaiue? after a year for simpie
annum simpli. quae actio damages ; and which lies when
utilis est, etsi quis unam rem, only a single thing of the slightest
licet minimam, rapuerit. value has been taken with violence.
Inst. 4, 2, pr.
Keller, der Kom. Civil Process, § 33, cf. Lenel, p. 314, gives the
following formula: Recuperatores sunto : Quantae pecuniae paret
dolo malo Numerii Negidii vi hominibus armatis coactisve damnum
datum esse Aulo Agerio bonave rapta, dumtaxat sestertium tot
millium, tantae pecuniae quadruplum, Kecuperatores, Numerium
Negidium Aulo Agerio condemnate : si non paret, absolvite. The
party aggrieved might either proceed by civil action or by criminal
prosecution under the lex Julia de vi publica et privata. This law,
enacted either by Augustus or by Julius Caesar, made the criminal
guilty of public or armed violence, liable to deportation ; the criminal
guilty of private or unarmed violence, to confiscation of a third of
his goods, Inst. 4, 18, 8.
The quadruple damages in the action of rapine were not purely
penal as in the action of furtum manifestum, but included the resti-
tution of the property or its value, a rule which was definitely settled
subsequently to the time of Gaius, see 4, 8, and cf. Inst. Just. 4, 2, pr.
The penal damages for rapine were therefore only three times the
value of the goods plundered, that is, less than the damages in furtum
manifestum. If, however, the robber was taken in the act, he was
chargeable, as Gaius explains, with furtum manifestum.
The lex Cornelia repetundarum passed by the dictator Sylla, B.C. 82,
instituting a criminal action against governors of provinces guilty of
in. § 209.] DE VI BONORVM RAPTORVM 417
extortion : the formula Octaviana or actio quod Metus causa, intro-
duced by the praetor Octavius, father of Augustus, B.C. 79 : and the
actio Vi bonorum raptorum, introduced by the praetor Lucullus,
B. c. 77, all fall within the space of four years and indicate the
lawlessness generated by the civil wars in the time of Sylla.
Kobbery, like theft, requires dolus malus, that is, criminal inten-
tion. If then a man, believing himself to be rightful owner, violently
seized movable goods, he was not guilty of robbery, Inst. 4, 2, 1 ; but,
by a constitution of the emperors Valentinian, Theodosius, and
Arcadius, enacted A. D. 389, in order to repress violence, and deter
people from taking the law into their own hands, a person who
violently seized either movable or immovable property, if rightful
owner, forfeited the property to the person dispossessed ; if not
rightful owner, was condemned, besides restitution of possession, to
forfeit the value of the property, Cod. 8, 4, 7. This constitution
increased the civil penalty recoverable for violent dispossession of
land by the interdict unde vi, 4 §§ 154, 155. The interdict unde vi
could not originally be maintained for violent, but unarmed, dis-
possession if the person evicted had himself acquired possession from
the evictor by an origin, violent, clandestine, or permissive, unless
the evictor had come armed with weapons of offence : and for either
armed or unarmed dispossession the liability, as far as the property
in question was concerned, was only restitution of possession. By
the constitution of the three emperors the civil penalty of all violent
disseisin was loss not only of possession but of ownership ; and sub-
sequently to this constitution, the interdict unde vi ceased to make
a distinction between armed and unarmed dispossession.
This constitution may be regarded as the final blow struck by the
Roman legislator at the archaic form of remedial procedure — private
violence or self-redress. In archaic society, if society it could be
called, before the establishment of central authority, public tribunals,
and police or executive functionaries, such was the only possible
means of redress ; and such redress was recognized and permitted
by primeval law, if the sentiments of the tribe at such a period can
be called by the name of law.
Among the German races the disorder implied by the toleration of
Feud or private war was gradually mitigated by the introduction of
certain Truces, or temporary or local Peaces : the Truce of the King,
prohibiting private war within the precincts of the royal residence :
the Truce of the Church, giving to the fugitive wrongdoer an asylum
in the sanctuary : the Truce of the Assembly, excluding the prosecu-
tion of feuds from the place where the Hundred was assembled : and
the Truce of the Town, Village, or House, protecting the offender from
homicidal attack within these limits.
WHITTUCK E 0
418
DE OBLIGATIONIBVS [in. §§ 210-219.
At some period, too, society interposed and offered to act as arbi-
trator, and to procure for the aggrieved party satisfaction of the
wrong he had endured. Accordingly all injuries were rated at a
certain tariff, and a person who had suffered aggression had the
option whether he should avenge himself or, in commutation of his
right of Feud, accept the fine fixed by this tariff, and awarded by a
tribunal of his countrymen. This mediation of the community,
which the plaintiff could accept or decline at his discretion, was the
origin of actiones poenales, the poena being the inducement offered
to the plaintiff to make him adopt the more peaceful course. In
Saxon law the alternative offered to the aggressor was expressed
by the maxim Biege spere of side other bere : ' Buy the spear off
the side or bear it ' : i. e. make atonement or be liable to Feud.
(Kemble.)
Finally the Peace of the King, proclaimed at each coronation,
became universal : the state undertook the decision and composition
of all quarrels ; and private war at all times and in all places was
interdicted and superseded by recourse to the public judicature.
§ 210. Damni iniuriae actio
constituitur per legem Aqui-
liam, cuius primo capite cautum
est, (uty si quis hominem
alienum alienamne quadrupe-
dem quae £>eeuchim numero sit
iniuria occiderit, quanti ea res
in eo anno plurimi fumt, tan-
tum domino dare damnetur.
Inst. 4, 3, pr.
§ 211. Thiuria autem occi-
dere intellegitur, cuius dolo
&ut culpa id acciderit; nee
ulla alia lege damnum, quod
sine iniuria datur, reprenen-
ditur ; itaque inpunitus est,
qui sine culpa et dolo malo
casu quodam damnum com-
mittit. Inst. 4, 3, 3.
§ 212. Nee solum corpus in
actione huius legis aestimatur ;
sed sane si seruo occiso plus
dominus capiat damni quam
pretium serui sit, id quoque
aestimatur, ueluti si seruus
meus ab aliquo heres institutus,
antequam iussu meo heredi-
tatem cerneret, occisus fuerit;
§ 210. Damage unlawfully
caused is actionable under the
lex Aquilia, whose first chapter
provides, that if a slave of another
man, or a quadruped of his cattle,
be unlawfully slain, whatever
within a year was the highest
value thereof, that amount the
offender shall pay to the owner.
§211. Unlawful slaying means
slaying by intention or negli-
gence ; loss occasioned by no fault
of the person committing it being
punished by no law ; hence a per-
son who damages another acci-
dentally and not wilfully or negli-
gently does so with impunity.
§ 212. It is not only the body
of the slave or animal slain that
is appraised in the action under
this statute, but if the killing of
a slave occasion to the owner the
loss of anything in addition to his
price, this loss is also appraised ;
for instance, if my slave has been
instituted somebody's heir, and
in. §§ 210-219.] DE LEGE AQVILIA
non enim tantum ipsius pre-
tium aestimatur, sed et heredi-
tatis amissae quantitas. item
si ex gemellis uel ex comoedis
uel ex symp^oniacis unus oc-
cisus fuerit, non solum occisi
fit aestimatio, sed eo amplius
(id) qnoque conputatitr, quod
ceteri qui supersunt depretiati
eunt. idem iuris est etiam si
ex pari mularum unam uel
etiam ex quadrigis equorum
unum occiderit. Inst. 4, 3, 10.
§ 213. Cuius autem seruus
occisus est, is liberum arbitrium
habet uel capitali crimine reum
facere eum qui occiderit, uel
hac lege danmum persequi.
Inst. 4, 3, 11.
§ 214. Quod autem adiectum
est in hac lege QVANTI IN EO
ANNO PLVKIMI EA EES FVEBIT,
illud efficit, si clodum puta aut
luscum seruum occiderit, qui
in eo anno integer (/uerit, ut
non quanti fuerit, cum occi-
deretur, sed quanti in eo anno
plurimi) fuerit, aestimatio fiat;
quo fit, ut quis plus inferdum
consequatur quain ei damnum
datum est. Inst. 4, 3, 9.
§ 215. Capite secundo (ad-
uersus} adstipulatorem, qui
pecuniam in fraudem stipula-
toris acceptam fecerit, quanti
ea res est, i&nii actio con-
stituitur. Inst. 4, 3, 12.
§ 216. Qua et ipsa parte
legis damni nomine actionem
introduci mam/lestum est. sed
id caueri non fuit necessarium,
cum actio manrfati ad earn rem
sufficeret; nisi quod ea lege
aduersus infitiantem in duplum
agitur.
§ 217. Capite tertio de omni
E e
before by my order he has signi-
fied his acceptance, he is slain,
valuation is made not only of his
body but also of the inheritance
I have missed ; or if one of two
twins, or one of a company of
players, or one of a band of musi-
cians is slain, an estimate is made
not only of his value but also of
the extent to which the remainder
are depreciated. The same holds
if one of a pair of mules, or one of
a team of four chariot horses
is killed.
§ 2 1 3. The owner whose slave
is killed has the option of pro-
secuting the homicide for a capital
crime or of suing him under this
statute for damages.
§ 214. From the words of this
statute, ' Whatever within a year
was the highest value thereof,' it
follows that if the slave killed
was lame or blind of one eye, but
had been sound within a year, the
owner will recover not simply his
value at the time of his death but
his highest value within a year,
the result being that a plaintiff
will in some cases recover more
than the amount of the loss he
has sustained.
§ 2 1 5. By the second chapter an
adstipulator who defrauds a prin-
cipal stipulator by releasing the
promissor can be sued for the
amount of the loss occasioned.
§ 216. It is evident that in this
part of the statute also an action
was instituted on account of
damage to property, though here
the provision was not absolutely
necessary, because the action of
Mandate would give a sufficient
remedy, except for this that the
lex Aquilia, when the action is
defended, gives double damages.
§ 2 1 7. The third chapter makes
2
420 DE OBLIGATIONIBVS EX DELICTO [in. §§ 210-219.
cetero damno cauetur. itaque
si quis seruum uel earn quad-
rupedem quae pecudum (nu-
mero est uulnerauerit, siue
earn quadrupedem quae pe-
cudumy numero non est, ueluti
canem, aut feram bestiam,
ueluti ursum leonem, uulnera-
uerit uel occiderit, hoc capite
actio constituitur. in ceteris
quoque ammalibus, item in
omnibus rebus quae anima
carent damnum iniuria datum
hac parte uindicatur. si quid
enim ustum aut ruptum aut
fractum (fuerity, actio hoc
capite constituitur, quamquam
potuerit sola rupti appellatio
in omnes istas causas sufficere ;
ruptum (enim intellegiturquod
quoquo modo corruptum) est.
unde non solum usta [aut rupta]
aut fracta, sed etz'am scissa et
conlisa et effusa et quoquo
modo uitiata aut perempta at-
que deteriora facta hoc uerbo
continentur. Inst. 4, 3, 13.
§ 218. Hoc tamen capite
non quanti in eo anno, sed
quanti in diebus xxx proxiims
ea res fuerit, damnatur is qui
damnum dederit. acnePLVEiMi
quidem uerbum adicitur. et
ideo quidam^mtaueruntliberum
esse iudici uel ad id tempus ex
diebus xxx aestirnationem redi-
gere, quo plurimi res fuerit,
uel ad id quo minoris fuerit.
sed Sabino placuit proinde
habendum, ac si etiam hac
parte PLVEIMI uerbum ad-
iectumesset; nam legis latorem
contentum fuisse, (quod prima
parte eo uerbo usus esset.
Inst. 4, 3, 14.
provision for all other damage.
Therefore if a slave, or a quad-
ruped included under the name
of cattle, is wounded, or if a
quadruped not included under
the name of cattle, as a dog, or
a wild beast, for instance, or a bear
or lion, is wounded or is killed, in
this chapter an action is provided :
so too if other animals or any
things inanimate are unlawfully
damaged, this part of the statute
supplies a remedy, since in this
chapter an action is expressly
established in case of anything
burnt, broken in pieces, fractured :
although the single word 'broken'
(ruptum) will suffice to cover all
these offences, for the word
' broken ' (ruptum) is interpreted
to mean injured in any way (cor-
ruptum quoquo modo) ; hence not
only burning, breaking, crushing,
but any cutting, bruising, spill-
ing, vitiating in any way, destroy-
ing, or deteriorating, is hereby
comprehended.
§ 218. We should notice that
in this chapter it is not the value
which the thing had within a year,
but which it had within the last
thirty days, that is chargeable on
the person causing the damage,
though the statute itself does
not expressly mention the term
highest value (plurimi). Hence
some of the other school have
held that it was left to the dis-
cretion of the judex whether the
damages should be measured by
the highest value or by any lower
value which the thing may have
had within the last thirty days :
but Sabinus held that the law
must be interpreted as if it con-
tained the word 'highest' (plurimi),
the legislator having thought it
sufficient to use this word in the
first chapter.
in. §§210-219.] DE LEGE AQVILIA.
421
§ 219. It has been held that an
action under this statute only lies
when the body of the offender is
the instrument of mischief ; and
therefore for any other mode of
occasioning loss praetorian actions
(actiones utiles) must be brought:
for instance, if a slave or quadru-
ped is shut up and starved to
death, or a horse is foundered by
hard driving, or a slave is per-
suaded to climb a tree or descend
a well, and in climbing or de-
scending falls and is killed or
hurt. But if a slave is pushed
off a bridge or bank into a river
and there drowned, the body of
the person by pushing him may
fairly be held to have caused his
death.
§ 219. Ceterumy placuit ita
demum ex ista lege actionem
esse, si quis corpore suo dam-
num dederit; ideoque alio modo
damno dato utiles actiones
dantur, ueluti si quis alienum
hominem a,ut pecudem inclu-
serit et /ame necauerit, aut
iumentum tarn uehementer
egerit, ut rumperetur; item si
quis alieno seruo persuaserit,
ut in arborem ascend eret uel
in puteum descenderet, et is
ascendendo aut descendendo
cecideri£ {et} aut mortuus
fuerit aut aliqua parte corporis
laesus sit; sed si quis alienum
seruum de ponte &ut ripa in
flumen proiecerit et is suffo-
catus fuerit, corpore suo dam-
num dedisse eo quod proiecerit
non difficiliter intellegi potest.
Inst. 4, 3, 16.
§ 210. The lex Aquilia was a plebiscite carried by a tribune called
Aquilius, according to Theophilus, at one of the secessions of the
plebs, probably at the secession to the Janiculum, B.C. 287, on which
same occasion the lex Hortensia was carried, making the plebiscites
binding on the patricians. (See Grueber, Lex Aquilia, p. 183.)
The words of the first clause are preserved in the Digest: Qui
servum servanive alienum alienamve quadrupedem vel pecudem
injuria occiderit, quanti id in eo anno plurimi fuit, tantum aes dare
domino damnas esto, Gaius in Dig. 9, 2, 2, pr. ' If a slave, male or
female, of another person, or a quadruped of his cattle is unlawfully
slain, whatever was the highest value it bore in the previous year,
such sum the slayer shall be condemned to pay to the owner.' Cattle
are animals that feed in flocks or herds, and include horses, mules,
asses, oxen, sheep, goats, and swine, Dig. 1. c. 2.
§ 212. The words Quanti ea res est, erit, or fuit occur in the
condemnatio or last part of a formula when a defendant is bound to
indemnify a plaintiff, that is, to pay him a certain value. These
words have two meanings : they mean either (i) the value of
& thing to the world in general, i. e. its selling value or market
value, called verum rei pretium, or vera rei aestimatio ; or (2) its
value to this particular plaintiff, id quod interest actoris, or utilitas
actoris ; a value which might be either less or greater than the
422 DE OBLIGATIONIBVS EX DELICTO [in. §§ 210-219.
market value. Early law does not include more than the market
value of the thing, but in course of time a wider view is taken of the
plaintiffs interest (Grueber. Lex Aquilia, p. 265).
Where a claim is founded on some kinds of contract, say a contract
of insurance against some kind of loss, the market value of the thing
lost is generally intended, though this of course depends on the
nature and terms of such contract ; in this case the loss of the plain-
tiff does not include the damages he has indirectly experienced
(damnum indirectum) nor the gain he has failed to realize (lucrum
cessans). When a claim of indemnification is founded on delict or
on breach of a contract, if this is not contrary to the intention
of the parties, the plaintiffs interest is the measure of the indemnity
to be paid, and includes not only the immediate damage that he has
suffered, but also the mediate, when it was certain and capable of
being foreseen ; and not only the positive loss which he has suffered
but also the gain which he has been hindered from realizing. If a
creditor has been kept out of a sum of money, he will at least be
entitled to the current rate of interest : but this is not the limit of
his claim, if he can prove that the current rate of interest is insuffi-
cient to cover the specific disadvantage he has suffered from the
Mora of his debtor.
The plaintiffs interest is the measure of the damages he recovers
by the Interdicts Uti possidetis, Utrubi, and Unde vi ; as it is in
all actions founded on delinquency. The actio vi bonorum raptorum,
however, is one of the exceptions to the rule. Here, in consequence,
probably, of the peculiar wording of the edict, the measure of damages,
the simplum or unit to be quadrupled, is not the plaintiff's interest
but the market value, Dig. 47, 8, 2, 13, Savigny, System, Appendix 12.
Instances of indirect damages due to the act or omission of a
defendant, are : the depreciation of the remaining horses of a team
when one has been killed : the penal sum which a plaintiff is liable
to pay from inability to fulfil another engagement in consequence
of the default of the defendant : the sale of goods mortgaged by the
plaintiff as security for another engagement which he cannot fulfil
in consequence of the default of the defendant : the downfall of a
house in consequence of the rottenness of the timber supplied by the
defendant : the infection and extermination of a whole herd of cattle
in consequence of a diseased beast being sold by the defendant.
Although in respect of computation of damages claims of indemnity
founded on breach of contract, whether in consequence of dolus or
culpa, may stand on the same footing as claims founded on delict ;
yet an important distinction was introduced by Justinian, who enacted
that in the former case the damages recoverable by this computation
of lucrum cessans and damnum indirectum should not exceed the
in. §§ 210-219.] DE LEGE AQVILIA 423
double of the immediate value, hoc quod interest dupli quantitatem
minime excedere, Cod. 7, 47 ; but left claims founded on delict with-
out any similar limitation. In claims founded on breach of contract
we may distinguish two obligations : the primary obligation as denned
by the promise of the contractor, the secondary or sanctioning obli-
gation produced by the non-fulfilment of the promise. According to
the nature of the contract, this non-fulfilment will be either the non-
performance of some service ; or the non-delivery of some goods,
movable or immovable ; or non-delivery at the covenanted time or
covenanted place ; or negligent custody and consequent deterioration
or destruction of some article deposited by the plaintiff ; or eviction
of the plaintiff from some property transferred to him by the defen-
dant ; or any other omission or non-feasance. The secondary
obligation of a defendant may be divided into two portions, one
corresponding to the immediate value to the plaintiff of the fulfil-
ment of the primary obligation, the other corresponding to his
mediate or indirect losses occasioned by its non-fulfilment. The
first portion may be regarded as principal, the second as accessory.
Similarly the active obligation or claim of the plaintiff may be divided
into two parts, principal and accessory. By the enactment of Justi-
nian, in an action founded on contract, the accessory claim can never
exceed the principal, or, in other words, the total claim of the
plaintiff can never exceed in amount twice the value of his principal
claim. In obligations arising from delict there is 110 primary obliga-
tion or principal claim capable of furnishing a corresponding unit of
measurement. The primary obligation of the defendant is here
a necessity of abstention whjch is not called by the Romans obli-
gatio : and the primary right of the plaintiff is a real right, a right
against all the world to freedom from molestation ; which real right
is not so definite or capable of exact valuation or appreciation as a
personal claim. Accordingly the sanctioning right of the plaintiff in
this case is left by Justinian without limitation or maximum ; and
the judex is directed to assess the amount of whatever damage the
plaintiff has actually incurred.
The enactment of Justinian was probably suggested by the stipu-
latio duplae annexed to contracts of sale, whereby in case of eviction
the purchaser was entitled to recover from the vendor twice the
purchase-money. Vangerow, § 57 L
§ 213. The owner of a murdered slave both had a civil remedy by
the lex Aquilia, and could prosecute criminally under the lex Cornelia
de sicariis, passed in the dictatorship of Sylla, B. c. 82.
§ 215. The lex Aquilia, like many other Eoman laws, combined
heterogeneous dispositions. The first and third chapters contain
remedies for destruction of property, or jus in rem, that is, the
424 DE OBLIGATIONIBVS EX DELICTO [m. §§ 210-219.
injury of what is called in English law a chose in possession ; the
second chapter contains a remedy for the destruction of an obliga-
tion, or jus in personam, that is, the injury of what is called in
English law a chose in action. The power of one promisee, the
adstipulator, to extinguish by acceptilation the right of the other
promisee, the principal stipulator, was a consequence of their
Correality, § 110, comm. The remedy of the stipulator against the
adstipulator, mentioned in the text, by actio mandati would not
have been in existence at the time when the lex Aquilia was enacted.
§ 217. The terms of the third chapter are preserved in the Digest :
Ceterarum rerum, praeter hominem et pecudem occisos, si quis alteri
damnum faxit, quod usserit, fregerit, ruperit injuria, quanti ea res
erit in diebus triginta proximis, tantum aes domino dare damnas esto,
Ulpian in Dig. 9, 2, 27 § 5. ' For property, other than slave or cattle
slain, damaged by burning, breaking, crushing, unlawfully, the value
it bore in the thirty days preceding the offender shall be condemned
to pay to the owner.' The general meaning which the jurists gave
to the word ' ruptum ' is an early example of extensive interpretation.
§ 219. An action founded on the text of a law was called actio
directa, an action not founded on the very text of the law, but
granted by the praetor in the exercise of his judicial authority in
circumstances which, though different, are similar to those which
founded the direct action, was called actio utilis. The direct Aqui-
lian action could only be brought by the owner (dominus) and when
damage was immediately caused by a body to a body. If the
damage was not caused by a body, or not by immediate contact,
only the actio utilis could be brought, » An actio utilis was brought
in the following cases :
(1) When the Aquilian remedy was given to a person who was not
owner but who had a jus in re aliena or was bonae fidei possessor.
(2) If the damage was not caused by a body, that is, not by im-
mediate physical contact (damnum not corpore but only corpori
datum).
(3) In a case of damage where neither the agent nor the patient
was a body, i. e. physically affected (damnum neither corpore nor
corpori datum).
(4) In a case of injury to a freeman.
There were three varieties of actio utilis :
(1) actio ficticia, 4 §§ 34-38 ;
(2) actions in which there was a variation in the persons named in
the condemnatio from those previously named in the intentio, as
in formula Eutiliana, 4 § 35 ;
(3) actio in factum concepta, 4 §§ 45-47.
It is probable that the utilis actio legis Aquiliae was generally in
in. §§2 10-21 9.] DE LEGE AQVILIA 425
the form of actio in factum concepta, though the actio ficticia in jus
concepta was sometimes used. Cf. 4 § 37.
The statement in the corresponding passage of the Institutes (4, 3,
16) that the actio in factum is to be distinguished from the actio
utilis legis Aquiliae is probably erroneous. There is no trace of such
a distinction in Gaius, and in the Digest the term actio in factum
is used in all cases of extension of the statute. It is to be remembered
that at the time of the compilation of the Institutes the formulary pro-
cedure, to which the terms actio utilis and actio in factum refer, had
long ceased to be the practice. (Grueber, Lex Aquilia, pp. 199-208.)
The mode of growth of Koman law and the relation between
directa Aquilia and utilis Aquilia may be illustrated by similar
phenomena in English law, and the relation between the two forms
of action called Trespass and Trespass on the Case. Trespass, which
lies for injury to real or personal property or to the person, accom-
panied with violence, has a more extensive application than directa
Aquilia, but viewed only as redressing injuries to personal property,
is nearly coextensive in its range. The original scheme of actions,
devised in comparatively barbarous times, contained no remedy for
injuries where there is no act done but only a culpable omission,
or where the act is not immediately injurious, but only by conse-
quence or collaterally, or where the idea of force is inapplicable
because the subject-matter is not corporeal or tangible, although
the injury may be by act direct and immediate in its operation.
To supply such deficiencies the statute of Westminster, 1 3 Edward I,
had directed the clerks in chancery to frame new writs whenever
the old scheme of writs contained no remedy for a wrong resem-
bling in its features other wrongs for which a remedy was provided.
Accordingly, a new writ of Trespass on the Case was framed upon
the analogy of the old form of Trespass (confer, ad exemplum
institoriae, § 1 62, comm.), applying to cases where the injury is not
immediate, or the subject affected is not corporeal, or the agency is
not bodily force. What Edward I directed to be done by the clerks
in chancery, and what was done by the introduction of the action of
Trespass on the Case, was exactly analogous to what the praetors did
when, in virtue of their magisterial authority, they supplemented the
civil law by the introduction of actiones ficticiae and action es in
factum. In respect of torts to personal property, the latter have
nearly the same sphere as Trespass on the Case. The innovations of
the praetor, however, were not confined to the region of torts to
personal property, but pervaded every sphere and constituted a mass
of supplementary law (jus praetorium), having to the remainder of
the law (jus civile) somewhat similar relations and proportions to
those which equity has to common law in English jurisprudence.
426 DE OBLIGATIONIBVS EX DELICTO [in. §§ 220-225.
All attempts to reconstruct the formula in an action for damages
under the lex Aquilia are to be regarded as highly conjectural.
Lenel, Das Edictum Perpetuum, p. 158, suggests the following as
a possible formula, when the action was brought adversus infi tiantem
in duplum, see § 216, 4 § 9. Si paret Numerium Negidium ilium
servum injuria occidisse, quam ob rem, quanti is servus in eo anno
plurimi fuit, tantam pecuniam Numerium Negidium Aulo Agerio
dare oportet, tantae pecuniae duplum, judex, Numerium Negidium
Aulo Agerio condemna: si non paret, absolve. The actio confes-
soria may, according to Lenel, have contained the following demon-
stratio — quod ille servus occisus est, quern Numerius Negidius injuria
se occidisse fassus est.
§ 220. Iniuria autem com-
mittitur non solum cum quis
pugno puta aut fuste percussus
uel etiam uerberatus erit, sed
etiam si cui conuicium factum
fuerit, siue quis bona alicuius
quasi debitoris sciens eum nihil
sibi debere proscripserit, siue
quis ad infamiam alicuius
libellum aut carmen scripserit,
siue quis matrem familias aut
praetextatum adsectatus fuerit,
et denique aliis pluribus modis.
Inst.4,4, 1.
§ 221. Pati autem iniuriam
uidemur non solum per nosmet
ipsos, sed etiam per liberos
nostros quos in potestate habe-
mus ; item per uxores nostras,
quamuis in manu nostra (71/0%)
sint. itaque si /iliae rneae
quae Titio nupta est iniuriam
feceris, non solum filiae nomine
tecum agi iniuriarum potest,
uerum etiam meo quoque et
Titii nomine. Inst. 4, 4, 2.
§ 222. Seruo autem ipsi
quidem nulla iniuria intelle-
gitur fieri, sed domino per
eurn fieri uidetur ; non tamen
isdem modis, quibus etiam per
liberos nostros uel uxores in-
iuriam pati uidemur, sed ita
cum quid atrocius commissum
§ 220. Outrage is committed
not only by striking with the fist
or a stick or a whip, but by scan-
dalous vociferation, or, though
knowing that nothing is due to
him, seizing and advertising for
sale under an order of the praetor
the goods of a person as if he
were an insolvent or an abscond-
ing debtor, or by writing de-
famatory prose or verse, or by
constantly following a matron or
youth wearing the praetexta, and
by many other modes.
§ 221. Outrage maybe suffered
not only in one's own person, but
also in the person of a child in our
power, or of a wife though not
in our hand. So that if you
insult my daughter who is married
to Titius, but has not passed out
of my power into his hand, you
are suable for outrage, not only in
her name, but also in my name,
and in the name of her husband.
§ 222. A slave cannot be out-
raged himself, but his master
may be outraged in his person,
not however by all the acts
whereby he might be outraged
in the person of a child or wife,
but only by atrocious assaults,
clearly intended to dishonour the
in. §§ 220-225.]
DE INIVRIIS
427
fuerit, quod &perie in con-
tumeliam domini fieri uidetur,
ueluti si quis alienum seruum
uerberauerit ; et in hunc casum
formula proponitur. at si quis
seruo conuicium fecerit uel
pugno eum percusserit, non
'proponitnr ulla formula nee
temere petenti datur.
Inst. 4, 4, 3.
§ 223. Poena autem iniuria-
rum ex lege xn tabularum pro-
pter membrum quidem ruptum
talio erat ; propter os uero fra-
ctum aut conlisum trecento-
rum assium poena era£, si libero
os fractum erat; at si seruo, CL ;
propter ceteras uero iniurias
xxv assium poena erat consti-
tuta. et uidebantur illis tem-
poribus in magna paupertate
satis idoneae istae pecuniarme
poenae. Inst. 4, 4, 7.
§ 224. Sed nunc alio iure
utimur. permittitur enim nobis
a praetore ipsis iniuriam aesti-
mare, et iudex uel tanti con-
demnat quanti nos aestimaueri-
mus, uel minoris, prout ei
uisum fuerit. sed cum atrocem
iniuriam praetor aestimare
soleat, si siinul constituent,
quantae pecuniae eo nomine
fieri debeat uadimonium, hac
ipsa quantitate taxamus for-
mulam, et iudex quamuis
possit uel minoris damnare,
plerumque tamen propter ip-
sius praetoris auctoritatem non
audet minuere condemnationem.
Inst. 1. c.
§ 225. Atrox autem iniuria
aestimatur uel ex facto, ueluti
si quis ab aliquo uulneratus aut
uerberatus fustibusue caesus
fuerit; uel ex loco, ueluti si cui in
theatre aut in foro iniuria facta
master, for instance, by flogging
the slave ; and for this affront
a formula is provided in the
praetor's album : but for verbal
abuse of a slave, or striking him
with the fist, no formula is pro-
vided, nor would an action be
readily granted.
§ 223. The penalty of outrage
in the Twelve Tables for a limb
broken was retaliation (talio) : for
a bone broken or bruised three
hundred asses, if the person in j ured
was a freeman ; one hundred and
fifty, if he was a slave ; for other
injuries twenty-five asses : and in
those days of excessive poverty
such sums seemed an adequate
reparation.
§ 224. The rule now in use is
different : the plaintiff is per-
mitted by the praetor to assess
his own damages for the outrage,
and the judex may either con-
demn the defendant in the whole
of this sum, or in a lesser sum
at his discretion. Atrocious out-
rage, however, is generally for the
praetor to estimate ; and when
he has once fixed the sum in
which the defendant must give
security to appear at the trial,
the limit is fixed at this sum in
the taxatio clause of the formula ;
and the judex, though he has the
power of condemning the plain-
tiff in less, generally, out of defer-
ence to the praetor, will not ven-
ture to reduce the condemnation.
§ 225. Outrages are atrocious
either by the act, as when a man
is wounded, horse-whipped, or
beaten with a stick ; or from the
place, as when an affront is of-
fered in the theatre or the forum ;
428 DE OBLIGATIONIBVS EX DELICTO [m. §§ 220-225.
sit; uel ex persona, ueluti si ma- or from the persons, as when a
gistratus miuriam passus fuerit, magistrate or a senator is insulted
uel senatori ab humili persona by one of inferior rank,
facta sit iniuria. Inst. 4, 4, 9.
§ 220. Injuria in this chapter denotes not any wrongful or un-
lawful act, but contumelious wrong, wrong tending to degradation,
a violation of the right to respect, honour, reputation ; such as libel,
malicious prosecution, assault and battery, and the like.
§ 221. If the husband were a filiusfamilias, the offender would be
liable to a fourth action, on the part of the father of the husband.
In each of these actions the damages might be different, being
measured by the varying dignity of the party dishonoured by the
outrage, § 225.
Outrage, like theft and robbery, and unlike damage under the
lex Aquilia, requires dolus malus, or unlawful intent. In outrage,
as in other delicts, the plaintiff had his option of proceeding civilly
or criminally, Inst. 4, 4, 10.
Lenel, § 190, suggests the following as the formula of the actio
injuriarum. Quod dolo malo Numerii Negidii Aulo Agerio pugno
malo percussa est, qua de re agitur, quantam pecuniam vobis bonum
aequum videbitur ob earn rem Numerium Negidium. Aulo Agerio
condemnari, dumtaxat HS . . . . , tantam pecuniam, si non plus
quam annus est, cum de ea re experiundi potestas fuit, recupera-
tores, Numerium Negidium Aulo Agerio condemnato : si non paret,
absolvito.
In the Eoman law which was in force as the Common Law of
German jurisprudence, till recently superseded by the German Civil
Code, simply penal suits appear to have been obsolete, with the ex-
ception of Injuriarum (see on this subject Burgerliches Gesetzbuch,
or German Civil Code, § 823, &c.) ; and here the modern plaintiff
has his election between pecuniary damages and an apology or
revocation of the injurious utterance. An inquiry into the reason
why the actio injuriarum alone has survived will illustrate the
nature of simply penal suits. Their principal object, as already
suggested, was to induce the aggrieved party to abstain from the
remedy offered him in archaic society, self-redress or private revenge.
In the case of other wrongs such inducement is no longer necessary.
But in the case of Affront or Dishonour the effect of the modern
code of honour has led the moderns even more than the ancients to
prefer the archaic institution of Feud or private war, as embodied
in the Duel, to an unromantic appeal to the public tribunals. Here,
then, the inducement to abstain from self-help, which elsewhere is
not needed, is still required.
Theft and Kapine are removed in the present day from the Penal
in. §§220-225.] CVLPA 429
branch of the Private code to the Criminal code ; that is, are not
punished at the discretion of a private plaintiff, but by the action of
a public prosecutor. Savigny, Law of Obligation, § 84.
Gaius seems to have been misled by a double meaning of Injuria
when he connects the actio Injuriarum with the redress given by
the Twelve Tables for grievous bodily harm, § 223. There seems to
be no necessary connexion between bodily harm and dishonour,
although both may have been denoted in Latin by the word Injuria.
In actions on Delict more especially, Real actions differing in this
respect from the liability of a defendant necessarily implies that he
is convicted either of Dolus or of Culpa, unlawful intention or un-
lawful negligence, § 211.
The opposite of Negligence is Diligence, vigilance, attention,
which, like Negligence, admits of an infinite variety of gradations.
Actions under the lex Aquilia, instituted to recover for unlawful
damage, are subject to this rule that, when Culpa, that is absence
of ordinary care, is once established, the amount of the defendant's
liability does not depend on its degree.
In actions founded on Dispositions, that is on Contract and quasi-
contract, the liability of the defendant may depend on the degree
of his negligence. In most relations a man is bound to make good
losses occasioned by slight negligence (culpa levis in abstracto), that
is, is liable for lack of ordinary care or care taken by an average
paterfamilias ; in others he is judged by a somewhat lower standard,
being only bound to take the same care of the property of another
as he is accustomed to take of his own (culpa levis in concreto) : in
others again he is only made answerable for the consequences of
gross negligence, culpa lata.
The terms, Gross and Slight, like other quantitative terms, have
no positive signification until we fix upon some unit of measure-
ment or standard of comparison to which any given instance may
be referred and by which it may be measured. Two standards are
frequently employed by the Roman jurists : the vigilant care (exacta
diligentia) of a good man of business (diligens paterfamilias, homo
frugi) and the care which a given individual habitually bestows on
his own interests (suus modus, diligentia quam suis rebus adhibere
solet). Slight negligence is the absence of the diligence of the
careful man of business ; gross negligence falls considerably below
this standard. Diligence and negligence, when referred to the
standard of the careful man of business, are sometimes called
abstract or absolute ; when referred to the habitual conduct of
the individual in the management of his own affairs, concrete or
relative.
The degree of diligence required of a man in any relation and the
430 DE OBLIGATIONIBVS EX DELICTO [in. §§ 220-225.
standard by which it is judged depends generally on the question
whether he is benefited or not benefited by the relation. He who
derives no benefit from it, e. g. the depositary and lender (commo-
dator, e. g. where the borrower is thrown from a horse lent to him),
is only answerable for dolus and culpa lata. On the other hand, the
depositor (e. g. if the depositary is injured by an explosive deposited
with him, without notice of its character) and the commodatarius are
bound to show exacta diligentia. It would seem that Mandate
(mandatum) forms an exception to this rule, for businesslike care
(exacta diligentia) is required of the Mandatary (mandatarius), and
the same rule applies to the negotiorum gestor; yet such agents, like
the depositary, are strictly speaking unremunerated, though in later
Roman law, as we have seen, the mandatary could often enforce
payment of his honorarium by recourse to the cognitio extraordinaria
of the praetor. But the real ground for imposing this liability no
doubt is to be found in the confidential relation in which the manda-
tary stood to the mandator. Similarly, according to English law,
strict diligence is required of Trustees, although they are unre-
munerated. The Roman Tutor and Curator, who were called on
to fulfil a public function, were only bound to take the same
care of their ward's property as of their own.
He then who derives advantage from a contract or disposition is
required to show businesslike care, and is responsible for abstract or
absolute negligence (culpa levis in abstracto) ; nor does it matter
whether he is exclusively advantaged by the relation, like the de-
positor and the gratuitous borrower for use (commodatarius) ; or
whether both parties to the disposition derive a benefit from it, e.g.
venditor, emptor, locator, conductor, mortgagor, mortgagee.
Exceptions to this rule, however, are to found in the cases of the
partner (socius), the tenant in common (communio), the husband in
respect of dotal property, the co-heir, the co-legatee. In these
relations both parties have an advantage, and yet their diligence is
only estimated by the relative standard : they have to show as
much care as they show in their own affairs ; not more, apparently,
than the tutor or curator; not the absolute care of diligens pater-
familias.
The old trichotomist division of culpa into lata, levis, and levis-
sima, is now generally abandoned, levissima disappearing, the oppo-
sition being between culpa levis, whether in abstracto or in concreto,
and gross negligence, culpa lata, which is hardly distinguishable
from dolus, or intentional wrong.
Under the head of Obligatio ex delicto should be placed, according
to Savigny, the doctrine of POSSESSION (Interdict -possession), or,
rather, of Dispossession, with its remedies, the Interdicts Utrubi, Uti
in. §§ 220-225.] POSSESSIO 431
possidetis, and Unde vi. This would agree with the Roman arrange-
ment : at least the Roman jurists, instead of treating possession by
the side of ownership, possession being the actual control of a thing
as owner, while ownership is the legal right to such control, were
content with regarding Dispossession as a ground of liability, im-
posing a secondary positive obligation on the individual dispossessor,
4 § 140, comm.
But the true place of Possession seems indicated by Vangerow,
who distinguishes between the Interdicta Retinendae and Recu-
perandae possessionis. The Interdictum Recuperandae possessionis,
i. e. Interdict Unde vi, is really based on something analogous to
a delict, and might perhaps have been ascribed to delictal law :
whereas Possession, as contemplated by the Interdicta Retinendae
possessionis, i.e. the Interdicts Uti possidetis and Utrubi, is pro-
tected as if it were a primary right demanding universal recognition
(jus in rem) that has its place in connexion with the law regulating
Dominium : and the interdicts allotted for its protection, though
perhaps nominally based on acts of a delictal character, are really
co-ordinate not with delictal actions, but with Real actions or
Vindicatio. Gaius only deals with Possession and possessory Inter-
dicts as belonging to the code of Procedure, without indicating their
position in the code of Substantive law.
ADDENDUM
FOKMAL, ABSTRACT, AND SIMULATIVE DISPOSITIONS.
THE following observations borrowed from Ihering are supple-
mentary to the statements on the nature of FORMAL contracts.
The contracts which in this treatise have been designated as
FORMAL are sometimes from a different point of view called ABSTRACT,
and an examination of the meaning of this term may throw light
on the function for which Formal contracts were invented by juris-
prudence and which this term expresses. The explanation of the
term turns on two conceptions : the Cause of an obligation (causa
obligationis) and the Form of a Disposition : the cause alone needs
elucidation.
A unilateral contract, consisting merely of a promise by one
party and an acceptance by another, is the result of a decomposition
of an actual transaction of commerce and life : actual transactions
are always (to set aside for the present the case of Donation)
bilateral. The unilateral agreement, conferring a benefit on A and
imposing a burden on B, is always accompanied by another uni-
lateral disposition burdensome to A and beneficial to B. The two
unilateral dispositions are reciprocally cause and effect : when one
is regarded as the causal factor, the other must be regarded (if we
may coin a term) as the sequent or dependent factor of the composite
or bilateral transaction.
Thus Mutuum, if we take one factor, is the promise to pay a sum
which the promisor has received from the promisee : if we take the
other factor, it is the alienation of property to a person who promises
to reconvey its equivalent to the alienor. Depositum and Commo-
datum, if we take one factor, are promises to restore Detention which
has been received from the promisee : if we take the other factor,
they are a delivery by a depositor or lender of Detention which
the depositary or borrower promises to redeliver. In Pignus there i i
a similar delivery and promise to redeliver Possession. Societas
is a promise by a partner to contribute towards the attainment of
a common end towards which the other partner promises a like contribu-
tion. In Mandate, there is, on the one side, a promise to perform
something at the charge and expense of a principal : on the other,
a grant of authority to deal with the property of the grantor to
a person who promises obedience to the instructions and devotion to
ABSTKACT CONTRACT 433
the interests of Ms principal. Here the italicized words show the
causal factors which the various unilateral dispositions require for
their support: and similarly all other unilateral pacts might be
shown to be dependent factors of compound bilateral transactions.
Each correlated unilateral disposition is both cause and effect..
Each is a lever by which the will of one of the contractors is moved.
Each is the efficient or motor cause of the other : and (as wills
are only moved by motives or ends) each is the final cause of the
other.
Although they are thus reciprocally dependent, yet generally in
practice one habitually precedes, and thus appears to be the causal
factor ; while the one which habitually follows appears to be the
sequent or dependent factor. This is always the case in Real and
Innominate contracts, where one disposition has always passed
beyond the limits of mere agreement into an alienation of property
(mutuum, the innominate contracts do ut des, do ut facias): alienation
of possession (pignus) : alienation of detention (depositum, commo-
datum) : or performance of service (the innominate contracts facio ut
des, facio ut facias),
The Form of a disposition is what we have elsewhere called its
Declaration. All dispositions have two elements or aspects, one
external or corporal, the other internal or mental. Internally they
are the Intention of a disposer or disposers ; externally they are the
expression or manifestation of this intention.
FORMAL contract separates the sequent from the causal factor
of a bilateral agreement, clothes the intention in a strongly marked,
sometimes strangely charactered, external expression, manifestation,
or FORM, in exact conformity to the prescription of archaic law or
primeval custom, and thus constitutes a unilateral contract valid
by form. FORMLESS contract is bound by no requirement of Form
and has no validity in isolation from its cause. FORMAL contracts
from the separation or abstraction of the sequent from the causal
factor, are appropriately called ABSTRACT ; while for the opposite
reason FORMLESS contracts may be denominated CONCRETE.
Abstract contracts sometimes contained in their formalities a
shadowy recognition of their departure from the concrete realities
of life — a confession of the necessity of a supporting Cause in
actual commerce ; but sometimes contained no such avowaL Thus
Expensilatio contained the phantom of a money loan, the analogon
of the ' Value received ' clause in a modern bill of exchange. But
this recognition was not universal ; for Stipulatio, whatever may
have been its original form (if derived from Stips, the word
suggests prepayment by the promisee: if connected with Stipes, it
merely signifies a binding formula), in the shape with which we are
WHITTUCK J? f
434 ADDENDUM
acquainted, does not suggest, as a motive or cause of the advantage
conferred on the promisee, any compensating burden that he has
previously borne.
The function of ABSTRACT contracts, the purpose for which they
were invented, is obviously the facilitation of the Proof of rights and
duties by means of the simplification of their Title. The more com-
prehensive the conditions of the Title to which a right is annexed,
the more complicated and troublesome will be its Proof. The causal
factor of Formless contracts yields to a fraudulent debtor at least as
many positions where he can intrench himself as the sequent factor.
The necessity imposed on the plaintiff in an action on a Formless
contract of proving the existence of an adequate cause doubles his
burden of proof : Abstract contracts reduce this burden to a fraction.
From the statement, 3 § 92, comm., that a certain evidence of the
contract is an integral part of Formal but not of Formless contracts,
that Formal contracts, in other words, take up into their essence
a certain preappointed evidence, while Formless contracts are com-
plete independently of this, it might be inferred that the elements of
the Formal contracts were more complex than those of the Formless :
but this would be an erroneous conclusion. The admission of evi-
dentiary matter into the essence of the Formal or Abstract contract
is more than counterbalanced by the exclusion of the causal factor.
The evidentiary matter is something visible and audible and easy of
proof and adjudication ; prescribed, indeed, for the very reason that
it is so easy of proof and adjudication : whereas the causal factor, $
involving a question of ulterior as well as of immediate intention,
may furnish scope for endless subterfuge and controversy.
The validity of Formal contracts irrespective of the causal factor was
to a certain extent infringed in later jurisprudence by the admission
of the Exceptio doli, more particularly in its form of Exceptio non
numeratae pecuniae. Thus for the space of two years after a cautio
for a loan by stipulation or otherwise had been given, the creditor
who sought to enforce the contract was under the necessity of proving
the existence of the causa (numeratio pecuniae) : to this extent, then,
Stipulatio was reduced to the disadvantageous position of a Formless
contract, 3 §§ 97-109, comm.
FORMAL dispositions were not confined to the sphere of contract :
in the sphere of alienations Traditio is Formless, while Mancipatio
and In jure cessio are Formal. Formal alienations present the same
contrast that we noticed between Formal contracts. Mancipatio by
its simulation of a purchase and the payment of purchase money
makes the same recognition of a causal factor that Nexum and Ex-
pensilatio made by the payment, or fiction of payment of, a loan ;
while in Jure cessio (if we can speak with confidence of a process
FORMAL ALIENATION 435
about which we know so little) resembled Stipulatio in containing no
such recognition.
Ihering, who has handled this topic, § 55, applies the term ABSTRACT
to Formal alienations. When, however, we compare Formal and
Formless alienations we find the terms Abstract and Concrete not so
applicable to alienations as they were to contracts, and for this
reason : in Formless alienation there is as complete an ABSTRACTION
or severance of the sequent from the causal factor as there is in
Formal ; and Tradition is as unilateral a transaction as Mancipation
or Surrender before a magistrate.
This assertion may seem inconsistent with the doctrine (2 § 65,
comm.) that, to constitute a valid alienation, Tradition must be
preceded by some justa causa, Donatio, Contractus, or Solutio. The
preceding disposition, however, is not required in order to form the
causal factor of a bilateral disposition, but in order to furnish evidence
of the Intention required for a unilateral disposition : to prove the
existence of animus transferendi dominii, without which Tradition
would be a Form without a substance, would want the internal
element it requires in order to amount to a Disposition. Once let
the sequent factor, the intention requisite for a unilateral disposition,
be proved, and the justa causa, the donandi, credendi, solvendi
animus is immaterial. Thus a misunderstanding between alienor
and alienee respecting the nature of the transaction, the one intend-
ing a loan the other a donation, or the one intending the discharge
of a debt imposed by testament the other the discharge of a debt
imposed by stipulation, is immaterial : because the intention of dona-
tion and of loan, of paying a legacy and of paying a stipulated debt,
alike involve the animus transferendi dominii. Cum in corpus
quidem quod traditur consentiamus in causis vero dissentiamus, non
animadverto cur inefficax sit traditio, veluti si ego credam me ex
testamento tibi obligatum esse, ut fundum tradam, tu existimes ex
stipulatu tibi eum deberi. Nam et si pecuniam numeratam tibi
tradam donandi gratia, tu earn quasi creditam accipias, constat pro-
prietatem ad te transire nee impedimento esse, quod circa causam
dandi atque accipiendi dissenserimus, Julian, Dig. 41, 1, 36. An
error in respect of the causa may be sufficient to entitle an alienor
to condictio indebiti or condictio sine causa ; i. e. to a suit for
restitution for want 'of consideration : but it does not prevent the
transfer of ownership in the first instance : and if the property
passes onward to a third person the alienor cannot reach it in his
hands, but has only a personal action against the original alienee.
In one particular instance, by special statutory enactment, the
causa traditionis is material to the efficacy of Tradition. Tradition
solvendi animo, when the solutio intended is the performance of
F f 2,
436 ADDENDUM
a contract of sale, operates no transfer of ownership except in sales
expressly on credit until the purchase money is paid or security is
given for its payment. This, as we have seen, 2 § 65, comm., was
a provision of the Twelve Tables in respect of Mancipation, and in
later times extended to Tradition. Surrender before the magistrate
was not thus restricted in its operation, but transferred ownership
irrespectively of the payment of purchase money. Ihering also holds
that in Mancipation the requirement of the Twelve Tables was deemed
to be satisfied by the simulation of payment (isque mihi emptus est
hoc aere aeneaque libra) ; and he suggests that the existence of the
requirement was the very reason why the simulation of payment was
introduced into this solemnity.
In this single point, then, Mancipation (if Ihering's view on the
subject is accepted) and Surrender before the magistrate were more
completely isolated from their causa than Tradition : but with this
exception, Formal and Formless alienations were equally ABSTRACT,
Both operated a transfer of ownership in spite of any flaw in the causa.
If such a flaw existed in either a Formal or a Formless alienation, it
only gave the alienor a personal action (condictio) against the alienee
for restitution. He could not recover the property if it had passed
out of the hands of the first alienee into those of a second.
If we inquire why Formless alienation was allowed to have validity
irrespectively of the causal factor, we shall find the reason to be, that
Tradition or parting with possession, though a Formless proceeding,
is an act of so serious a character as effectually to preclude all idea of
indecision — to prove that the parties had reached the stage of defini-
tive resolution. Accordingly the intention of transferring ownership
when manifested by Tradition seems to deserve all the efficacy that
could be imparted by the observance of the most solemn Forms.
As in the later jurisprudence Stipulatio was robbed of part of its
efficacy by the Exceptio pecuniae non numeratae, so, though at an
earlier period, and in a different way, Alienations and other transac-
tions, whether Formal or Formless, could be prevented from operating
by the in integrum Eestitutio, and by the actio quod metus causa,
impersonal remedies (in rem) which reached the person benefited by
property to whatever hands it might have arrived by the effect of
subsequent alienations.
If, then, Formal alienations were not simplifications of title in
virtue of any greater ABSTKACTNESS than was possessed by Formless
alienation, for what other advantage were they introduced into
commerce ? by what other attribute were they a facilitation of Proof?
They facilitated proof (i) of the specific intention of a disposer against
an allegation of a different intention, and (2) of the existence of
intention against the denial of all intention.
FORMAL ALIENATION 437
(1) Delivery of a thing might be made with the design of merely
transferring Detention. Such was its effect in Depositum, Commo-
datum, Mandatum, Locatio. Or, secondly, it might be made with
the purpose of transferring something more than Detention, namely
Possession. Such was its effect in Pignus and Precarium. Or, thirdly,
it might be made with the intent of transferring Ownership, as in
Donatio, Mutuum, Solutio. Which of these intentions prompted a
given Delivery might be extremely difficult to prove. The difficulty
vanishes in Mancipation and Surrender before a Magistrate. Their
forms comprehend a most emphatic and trenchant expression of
intention. ' I assert that this slave is my own ' (hunc ego hominem
meum esse aio) is the exclamation of the alienee, confirmed by the
assent of the alienor, in both modes of Formal alienation.
(2) Formless dispositions, whether alienations or contracts, may
leave a doubt not only which of several intentions governed a pro-
cedure, but whether any intention at all had been matured in the
minds of the negotiators. Had the parties passed the stage of mere
contemplation, inclination, preliminary discussion, were they still
vacillating, now yielding to an attractive prospect, now receding
from half-made concessions ? Or had cupidity and timidity, desire
and hesitation, given place to final decision and deliberate resolve ?
It is obvious that the formalities of the solemn modes of contract
were invented for the purpose of excluding all doubt from the answers
to these questions.
Beginning these remarks we adjourned the consideration of Dona-
tion, which may now be noticed. Unilateral dispositions, we have
seen, do not exist in the actual world unaccompanied. Each implies
another on which it leans. Intention to incur a loss has its final and
efficient cause in intention to procure a gain. If this was universally
true we might say that all dispositions were in respect of motive
bilateral : i. e. that in all a pecuniary loss incurred at one stage of the
transaction is balanced by a pecuniary gain accomplished at another.
This holds of all mercantile transactions which are the bulk of those
that occupy the attention of jurisprudence. The market, however, is
not the whole of the world, nor are mercenary acts the whole of life ;
and there is such a thing as a disinterested disposition, a disposition
wherein a man incurs a loss to which the causa or motor factor is
the intention not of counterbalancing gain in another part of the
transaction, but of pure and simple and unrequited liberality.
Donation may be found in the sphere either of Ownership or of
Obligation ; it may be accomplished either by alienation or by
promise : the intention of liberality may be consummated either by
Tradition or by Stipulation. Donation, that is to say, is one of the
causae obligationis as well as a justa causa traditionis : and it was in
438 ADDENDUM
contemplation of a contract animated by such a cause that we abstained,
when beginning this note, from saying unreservedly that all actual
agreements were in respect of the motives giving rise to them bilateral.
I will seize the present opportunity of supplying an omission in
the commentary and noticing another feature common to many
Formal dispositions.
The FORMAL dispositions of Koman jurisprudence were frequently
SIMULATIVE. When a new juristic purpose was to be accomplished,
the method of jurisprudence was, instead of creating for it by an
effort of imagination a new corporeal form, to lay hold of some exist-
ing disposition, and wrenching it more or less completely from its
original basis and original uses, to employ its more or less twisted
and distorted form as a vehicle or incorporation of the new intention.
The new intention is the reality : the original intention is divorced
from the form once its own, and now is merely SIMULATED. Thus
the festuca wielded in Sacramentum perhaps represents the weapon
intended to be used in a duel, the older mode of ascertaining rights.
Surrender before the magistrate (in jure cessio) is intended to effect
a transfer of ownership from person to person : in form it is a judg-
ment respecting an already existing ownership. Transcripticia
nomina were intended to operate novations, to transform equitable
into legal obligation : in form they were loans of money. Mancipa-
tion, a solemn form of conveying dominion, simulated a sale and the
accompaniment of primeval sales, the weighing of the uncoined masses
of bronze that served as purchase money. The form then, instead
of being the natural execution and expression of an intention, has
but a remote correspondence to the end which it embodies, and
sometimes may be called SYMBOLIC : e. g. the production of the scales
and bars of bronze and pantomime of weighing in Mancipation was
the natural mode of executing an archaic sale, but is merely a SYMBOLIC
or hieroglyphic expression of the transfer of ownership. Sometimes
a mimetic disposition became itself the object of subsequent mimicry,
as is seen in the mode of discharging obligations, called acceptilatio
Aquiliana.
The Simulative character was not a universal feature even of the
older Formal dispositions : for instance, Stipulation seems to have
had nothing mimetic in its form : while later jurisprudence, when it
had to invent a form, never adopted the symbolic style. Kigorous
forms were prescribed as a condition of the validity of various dis-
positions : e. g. the presence of a certain number of witnesses for the
execution of a Will : memorandum in the judicial records (actis,
gestis insinuare) for donations of more than 500 solidi or for effecting
emancipation by entry in such records (emancipatio Justinianea) :
none of which were simulations of any more primitive procedure.
SIMULATIVE DISPOSITIONS 439
The degree of integrity or mutilation in which the primeval dispo-
sition persisted in the modern institution varied in different instances.
Sometimes the old proceeding imposed all its rules on the new insti-
tution : more commonly many of its aspects were effaced and only
isolated incidents continued in force. The procedure which involved
Coemptio, 1 § 113, was applied by the ingenuity of later jurists to
accomplish three purposes never dreamed of by those who presided
over its introduction : the extinction of the sacred rites by which the
estate of an heiress was burdened ; the change of guardian by a
woman at the period when all women were under wardship ; and
the acquisition of testamentary capacity by a woman at a time when
widowhood was the only title by which it could be acquired. It
was a complicated process and consisted of three factors, each of
which was an archaic institution: (i) a Hand-marriage (in manum
conventio) accompanied with a fiducia for remancipation ; (2) a
remancipation accompanied with a fiducia for manumission ; (3)
a manumission and consequent wardship. Of these factors the
Hand-marriage was a pure unreality : it was divested of reality by the
accompanying fiducia ; yet one of its incidents continued in force,
the transfer of the obligation to the sacred rites from the heiress to
the coemptionator. The second act was so far an unreality that it
was no longer the sale of a wife by her savage lord in exchange for
some more coveted commodity : but it was real so far as it subjected
the remancipated woman to capitis minutio. The manumission was
unreal so far as it implied a vindication into freedom or a liberalis
causa and an escape from the hardships of bondage : but it was real
so far as it had the effect of making the manumitted ex-bondwoman
the ward of her manumitter.
Emancipation, 1 § 132, was a process which usually consisted of
four mancipations and three manumissions. The first three mancipa-
tions were each accompanied by a fiducia of the alienee : the first
two by a fiducia binding the alienee to manumit the son, the third
by a fiducia binding the alienee to remancipate the son to the father.
By the final manumission the parens manumissor became the patron
of his son. Here we have another ceremony which employed a
primitive disposition divested of its natural motive. The indepen-
dence of the son whose father had three times sold or leased his
patria potestas over him to a stranger was originally enacted by the
Twelve Tables as a punishment for an odious and unnatural exercise
of parental rights. In later times the mancipation of the son for the
sake of its legal consequences was an act of self-abnegation on the
part of the father ; a means of promoting the son to an independent
position, the status of head of a household.
The positive and arbitrary character of SIMULATIVE dispositions
440 ADDENDUM
displays itself in the fact that the laws of the original dispositions
which they welded into their substance were neither consistently
regarded nor consistently disregarded. (A) Sometimes they were
regarded in spite of the inconvenience they occasioned : (B) some-
times convenience prevailed : the new institute acquired an in-
dependent position ; and logic and archaeology were set at defiance.
(A) The form of surrender before the magistrate could not be
employed for the acquisition of property by the agency of an inferior
(son or slave), because such a person could not be a plaintiff in a
genuine vindicatio. Hence the inferior could be an instrument for
acquiring a rustic servitude, because he could be a party to a manci-
pation, but not for acquiring an urban servitude, because this could
only be conveyed by surrender before the magistrate, 2 § 29.
In Mancipatio the payment by bars of bronze became as fictitious
as the adprehensio or taking possession; and yet, according to Ihering,
it sufficed to satisfy the requirement of the Twelve Tables whereby
in Sale and delivery the passing of property was suspended until
payment of the purchase money. (See 2 §§ 15^27, comm., and cf.
Sohm, p. 60, &c., Muirhead, p. 134, &c.)
Manumission of the son by the emancipating father from the
shadowy state of mancipium invested the latter, if he survived his
son, with the serious pecuniary rights of patroiius against his testate
or intestate succession.
Women were incapable of Adrogation, because this solemnity
involved a formal assembly of the Comitia Curiata ; and in such
an assembly women were not allowed to be present.
In the mancipatory will the Familiae emptor was originally in
the place of the heir ; and therefore, to exclude partial testimony
(domesticum testimonium), persons united to Familiae emptor by
the bond of patria potestas were disqualified for the role of witness.
The disqualification was continued, in spite of the inconvenience
it would occasion, when the familiae emptor was a mere form ;
and, what is more extraordinary, legatees and persons united to the
real heir were admissible as witnesses, although the policy of the
law was thereby entirely put into confusion (totum jus tale contur-
batum fuerat, Inst. 2, 10, 10). The requirement of testamenti factio
passiva at the time of the making of a will, as well as at the time
of the testator's death and the time of acquisition by the heir, was,
according to Savigny, § 393, only an irrational consequence of the
simulation of Mancipium in a will.
(B) In the following instances, on the contrary, the laws of the
simulated institution were disregarded or transformed. Hereditatis
petitio being a form of Vindicatio we might have expected that any
kind of inheritance when once vested would be transferable by
SIMULATIVE DISPOSITIONS 441
surrender before the magistrate or fictitious vindication, just as any
inheritance could be claimed by genuine hereditatis petitio. But we
find that only the intestate succession of a collateral (legitima
hereditas) could be thus conveyed, if, made after aditio, it transferred
only the corporeal property of the inheritance, not the inheritance
itself, 2 § 35. Of. Sohm, p. 533, n. 3.
In Mancipatio, although the fictitious payment sufficed for the
transfer of dominion, yet actual payment or credit was required
for the purpose of making the alienor subject to auctoritas, that
is, to liability to repay twice the purchase money in the event of
eviction, Paulus, 2, 17, 13. Cf. Muirhead, Roman Law, § 30.
Again, the Census, like a year of jubilee, appears to have
liberated from genuine bondage ; but not to have broken the
fictitious bondage of a son who was in the course of emancipation,
1 § 140.
Coemption, we are told, transferred to the husband the universal
estate of the wife, 2 § 98. We may suppose that it had not a similar
effect on the property of a woman who merely made a coemption
for the purpose of changing her guardian or acquiring testamentary
capacity, though it may perhaps have been that the transfer took
place but that the coemptionator was under a fiducia to retransfer it.
The genuine sale of a wife was probably forbidden at an early period
under the severest religious sanctions : this did not prevent the
simulated sale (rernancipatio) of a woman by her coemptionator,
i. e. the simulating disposition when once established was free from
the supervening rules of the simulated disposition.
A Testament was originally a Mancipation ; but the familia or juris
universitas, the object of testament, is not found in the catalogue of
mancipable things (res mancipi): a testament was revocable, a
mancipation irrevocable : the mancipation itself could not have its
operation suspended or made contingent on a condition, though it
could be made subject to nuncupatory and fiduciary claims ; a testa-
ment became by means of the nuncupatory part of the mancipation
a disposition de futuro and might be conditional : a mancipation
only conveyed real rights ; nexum, which imposed obligation, though
cognate, was a distinct institution : testament invested the heir with
the entire property of the deceased, including his obligations : man-
cipation only aifected the alienor and alienee ; testament conferred
rights on heirs and legatees, i. e. strangers who had in no way co-
operated in the execution of the testament. The sacrifice of reality
to fiction by the slavish adherence to the rules of domesticum
testimonium makes it the more remarkable that the testament should
have burst asunder so many other restrictions of mancipation.
Ihering, Geist des Koemischen Kechts, § 58.
COMMENTAEIYS QVARTYS
§1-
— | — quot genera
actionum sint, uerius uidetur
duo esse, in rem et in personam ;
nam qui mi esse dixemnt ex
sponsionum generibus, non
animaduerterunt quasdam spe-
cies actionum inter genera se
rettulisse. Inst. 4, 6, 1.
§ 2. In personam actio est,
qua agimus cum aliquo, qui
nobis uel ex contractu uel ex
delicto obligatus est, id est cum
intendimus DARE FACERE PRAE-
STAR.E OPORTEBE. Inst. 1. C.
§ 3. In Tern actio est, cum
aut corporalem rem intendimus
nostram esse, aut ius aliquod
nobis conpetere, ueluti utend^
aut utendi fruend^, eundi agendi
aquamue ducendi uel altius
tollendi prospiciendiue ; {aut
cum} actio ex diuerso aduer-
sario est negatiua. Inst. 1. c.
§ 4. Sic itaque discretis ac-
tionibus certum est non posse
nos rem nostram ab alio ita
petere si PARET EVM DARE
OPORTERE. nee enim quod nos-
trum est nobis dari potest, cum
scilicet id dari nobis intelle-
§ 1. We have now to treat of
Actions, which according to the
better view fall into two classes,
being either Eeal or Personal :
for those who count four classes,
including the forms of sponsio,
commit the error of co-ordinating
sub-classes with classes.
§ 2. A Personal action is an
action which seeks to enforce an
obligation imposed on the de-
fendant by his contract or delict,
that is to say, is an action by
which one claims in the intentio
of the formula that he is bound
to convey some property to one,
or to perform for one some service,
or to make some other kind of
performance.
§ 3. A Eeal action is an action
by which one claims as one's own
in the intentio some corporeal
thing or some particular right in
the thing, as a right of use or
usufruct of a thing belonging to
a neighbour, or a right of horse-
way or carriage-way through his
land, or of fetching water from a
source in his land, or of raising
one's house above a certain height,
or of having the prospect from
one's windows unobstructed ; or
when the opposite party (that is
the owner) brings the negative
action asserting that there is no
such right in the thing.
§ 4. Keal and Personal actions
being thus distinguished, it is
clear that I cannot demand my
own property from another in the
following form : ' If it be proved
that the defendant is bound to
convey such property to me. ' For
iv. §§1-9.]
ACTIONVM DIVISIO
443
gatur, quod (ita datur, uty
nostrum fiat ; nee res quae
(nostra iam est} nostra amplius
fieri potest. plane odio furum,
quo magis pluribus actionibus
teneantw, receptum est, ut ex-
tra poenam dupli aut quadrupli
rei recipiendae nomine fares
etiam hac actione teneantur
SI PARET EOS DARE OPORTERE,
quamuis sit etiam aduersus eos
haec actio, qua rem nostram
esse petimus. Inst. 4, 6, 14.
§ 5. Appellantur autem in
rem quidem actiones uindica-
tiones, in personam uero ac-
tiones, quibus DARI FIERIVE
OPORTERE intendimus, condi-
ctiones. Inst. 4, 6, 15.
§ 6. Agimus autem interdum,
ut rem tantum consequamur,
interdum ut poenam tawtum,
alias ut rem et poenam.
Inst. 4, 6, 16.
§ 7. Rem taTitum persequi-
mur uelut actionibus, {quibus}
ex contractu agimus.
Inst. 4, 6, 17.
§ 8. Poenam tantum perse-
quimur uelut actione furti et
iniuriarum et secundum quo-
rundam opinionem actione ui
bonorum raptorum ; nam ipsius
rei et uindicatio et condictio
nobis con petit. Inst. 4, 6, 18.
§ 9. Hem uero et poenam per-
what is already, my own cannot
be conveyed to me, since convey-
ance to me makes a thing mine,
and what is already mine cannot
be made more mine than it is.
Yet, to show the law's detestation
of thieves, in order to make them
liable to a greater number of
actions, it is received doctrine
that besides the penalty of twice
the value of the thing stolen
awarded against the thief not
caught in the act, and the penalty
of four times the value against the
thief caught in the act, damages
for the thing itself may be re-
covered by a personal action in
which the contention is thus
worded : 'If it be proved that the
defendant ought to convey the
thing in question,' although they
are also liable to be sued by an
action with the intentio thus
formulated : 'If it be proved that
the plaintiff is owner of the thing
in question.'
§ 5. A Eeal action is called
vindicatio ; a Personal action,
whereby we contend that some
property should be conveyed to
us or some service performed for
us, is called condictio.
§ 6. We sue sometimes only
to obtain property, sometimes
only for a penalty, sometimes
both for property and for a
penalty.
§ 7. We sue, for instance, only
for property in actions founded
on contract.
§ 8. We sue, for instance, only
for a penalty in the action of Theft
and of Outrage, and, according to
some, of Eapine ; for we may
obtain restitution on account of
the thing itself either by vindicatio
or condictio.
§ 9. We sue, for instance, both
444 DE ACTIONIBVS fiv. §§ 1-9.
l_ 3 3
sequimur uelut ex his causis, for property and for a penalty in
ex quibus aduersus infitiantem those actions where the defendant
induplumagimus; quodaccidit who denies his liability is con-
per actionem iudica^, depensi, demned to pay double, as in the
damni inmrme legis Aquiliae, actions to recover a judgment
aut legatorum nomine quae per debt' to recover money paid by
damnationemcertarelictasunt. a sPonso^ for his principal, to
Inst 4 6 19 recover damages for injury to
property under the lex Aquilia,
and to recover legacies of a definite
amount bequeathed in the form
of legacy per damnationem.
§ 1. From Substantive law Gaius now passes to the law of Pro-
cedure, confining himself partly with its Material as opposed to its
Formal aspect: dealing with actions, that is to say, not so far as
they are merely the method of realizing rights, but also as being
the rights themselves which entitle a person who is wronged to
obtain redress by legal process. Dig. 44, 7, 51, actio est jus, quod
sibi debeatur, judicio persequendi.
If we inquire which code is the earlier in its development, the
Substantive code or the code of Procedure, the answer is that they
are essentially contemporaneous : a Substantive code can have no
actual existence unless there is some method of giving it force ; and
again, a code of procedure can have no meaning unless there is a
substantive law to be administered. But after recognizing that the
two codes are correlative and necessarily coexistent, we find that
historically the code of Procedure is prior in the chronological order :
it attains to a high grade of development, while the Substantive
code, which started into- birth at the same time, remains in a rudi-
mentary, undeveloped condition. Courts of law once established
soon evolve strict rules to govern their proceedings, while society is
in too rudimentary a condition to enable it to define the substantive
law brought into existence by the legal remedies which are provided.
The following contrast of ancient and modern jurisprudence here
deserves a notice. No primary rights can be conceived without
sanctioning rights, or rights which arise when the primary rights
are violated : and again, no sanctioning rights can be conceived
without Actions or modes of evoking the interposition of the
sovereign power. And, as Eights imply Actions, so reciprocally
Actions imply Eights. But though, as corresponding or correlated
terms, Eight and Action have a necessary connexion, and the
existence of one may be inferred from the existence of the other ;
systems of jurisprudence may differ in different stages of develop-
ment as to which of these terms, the Eight or the Action, they deem
the more evident ; which they regard as the datum and which
iv. §§1-9.] ACTIONVM DIVISIO 445
the matter to be proved ; which the logical premiss and which the
conclusion.
In primitive jurisprudence, when there is little direct intervention
on the part of the state with private law, the Remedy is regarded as
the certainty ; the Right, primary or sanctioning, as the matter of
deduction. The forms of Action, emphatically so in Statute-process
(legis actio) and to a great extent even in the Formulary system as
crystallized by statute or laid down in the edict, were capable of
enumeration and incapable or difficult of multiplication ; and from
the application by the courts of these forms the citizen might deduce
the list of his legal rights and duties. The logic of ancient law
may be expressed in the maxim : Where there is a Remedy there is
a Right : There is no Right unless there is a Remedy.
The modern jurist assumes the other, the more ideal of the two
correlated terms, to be the more evident, and acts upon the converse
maxim : Where there is a Right there is a Remedy ; or, Given the
Right, the Remedy follows. The action now is the dependent term :
its forms are unimportant and indefinitely variable ; they are no
longer crystallizations. If a Right is established and no appropriate
form of action seems to exist, a new one is forthwith invented, and
its fitness to enforce the established right is sufficient to procure its
recognition by the judicature. Such at least, if not opposite goals
at which ancient and modern jurisprudence have arrived, appear to
be opposite directions in which they diverge.
Sponsio or wager between the parties to a litigation was an in-
direct mode of submitting questions to judicial decision, which
seems to have been in use before the introduction of the formulary
system. We are left to conjecture how its classification enabled
any jurist to count four classes of action. Its principal division
seems to be into the sponsio where the pecuniary risk was serious
and the penal sum important (sponsio poenalis), and the sponsio
used for the purpose of framing an issue to be tried where the penal
sum was nominal and not actually exacted (sponsio praejudicialis).
This division of actions into four instead of two classes may possibly
have arisen from the difficulty of finding a place in the twofold
division for interdicta and praejudicia. The four classes of actions
which Gaius refers to would accordingly be, actio in rem, actio in
personam, actio per sponsionem praejudicialem, actio per spon-
sionem poenalem ; but as the last form of action is regarded as being
in personam, and the actio per sponsionem praejudicialem as in rem,
Gaius prefers the twofold division. (Cf. Keller, Civil Process, § 87,
n. 82.) According to Huschke the four classes intended are (i) per-
sonalis actio, (2) petitoria formula, (3) in rem actio, per sponsionem
cujus summaper formulam petitur, (4) per sponsionem cu jus summa
446 DE ACTIONIBVS [iv. §§ 1-9.
sacrament! actione petitur. (See Muirhead's Gaius, h. 1.) In either
case the classification would involve a co-ordination of sub-genera
and genera, or subdivisions and divisions.
A Real action, § 3, is one which asserts a jus in rem, a Personal
action, § 2, one which asserts a jus in personam. A jus in rem, we
may remember, is a right to certain forbearances, or freedom from
molestation, corresponding to a duty imposed on all the world : a
jus in personam is a right to certain performances or forbearances
corresponding to a duty imposed on a determinate person. Jura in
rem, which are rights of property, are Ownership, and jura in re
aliena, such as Servitude, that is, some fraction of ownership,
Emphyteusis, and Pignus. Jura in personam are Obligations founded
on either contract or delict, or some quasi-contract or quasi-delict.
A Real action, accordingly, asserts either the ownership (hunc
hominem meum esse aio) of the plaintiff or one of the jura in re
aliena above mentioned ; a Personal action asserts an obligation of
the defendant towards the plaintiff.
In Roman law, it should be remembered, a claim of property in
a movable is a Real action just as much as a claim of property in an
immovable. Thus the distinction between Real and Personal actions
which we meet with in the history of English law diverged widely
from its Roman prototype.
A Real action or actio in rem when carried on in the form of legis
actio Sacramento, § 16, contained an assertion by each party of his
claim to the thing not as against the other party to the suit, but
absolutely. — Hunc ego fundum ex jure Quiritium meum esse aio, &c.,
and similarly in the formulary procedure a real action names no
party but the Plaintiff in the intentio, the principal part of the
formula or written instructions of the praetor to the judex, in which
the plaintiff's claim is specified ; e. g. Si paret hominem quo de agitur
ex jure Quiritium Auli Agerii esse ; whereas a Personal action names
the defendant as well as the plaintiff in the intentio, e. g. Si paret
Numerium Negidium Aulo Agerio H. S. decem milia dare oportere.
A vindicatio originally in the form of legis actio sacramento in
rem, in which the striking the slave with the vindicta or wand was
retained, survived in the in jure cessio used for the purpose of
manumission (vindicatio in libertatem), and also in the form of
adoption, cf. 1 § 1 34 — is qui adoptat vindicat apud praetorem filium
suum esse, et illo contra non vindicante a praetore vindicanti filius
addicitur. Trials concerning status were, we know, carried on in
the decemviral court by process of legis actio till the time of
Augustus. We know that in a question of libertas (liberalis causa),
until the time of Justinian, the person whose freedom was in dis-
pute could not be either plaintiff or defendant, his rights were
IV. §§ 1-9.] ACTIONVM DIVISIO 447
advocated by an Adsertor, Cod. 7, 17, De adsertione tollenda. Under
the formulary system questions of status might be tried by a prae-
judicium, § 44, which was regarded as a kind of actio in rem. We
have no record of the precise form of the intentio in this case.
A vindicatio asserting ownership in land contained an intentio
in these words : Si paret ilium fundum ex jure Quiritium Auli
Agerii (Plaintiff) esse. A vindicatio claiming not absolute property,
but some fraction of ownership (jus in re aliena), for instance, a rural
servitude, contained an intentio to this effect : Si paret Aulo Agerio
jus esse per fundum ilium ire agere, quanti ea res erit, &c., or, Si
paret Aulo Agerio jus esse aedes suas altius tollere invito Numerio
Negidio, quanti, &c., § 3. Cf. §§ 92, 93.
A Personal action, as we have seen, named in the intentio the
defendant, who was alleged to be under an obligation to the plaintiff.
E. g. if the plaintiff alleged that the defendant lay under an obli-
gation to restore to him the thing he had lent him, the action was in
this form : Si paret Aulum Agerium Numerio Negidio rem de qua
agitur commodasse eamque Aulo Agerio redditam non esse, quanti
ea res erit, tantam pecuniam condemna, si non paret, absolve.
The word Dare is used in the Intentio of a Condictio Certi, i. e.
an action wherein the plaintiff asserts that the defendant is under
an obligation to convey quiritary property in a determinate thing,
whether a sum of money or any other object of property, a certain
slave, certain corn, certain land. E. g. Si paret Numerium Negidium
Aulo Agerio sestertium decem milia — tritici Africi optimi centum
modios — dare oportere.
The word Facere never appears to stand alone in an intentio, but
in its stead we have Dare facere in the Intentio of actio ex stipulatu,
that is, of an action on a stipulation to enforce a claim of an
uncertain amount, a claim of any service but the transfer of quiri-
tary property in a certain thing, that is, to enforce any obligation
not included under Dare as above defined. E.g. Quidquid paret
Numerium Negidium Aulo Agerio dare facere oportere, § 5, comm.
Praestare is a term of wider meaning than the two preceding, and
appears specifically to denote reparation for any harm, compensation
for any loss, damages for breach of any obligation other than liability
— dare — or dare facere. But some writers have tried to attach a
more definite meaning to the term. (Cf. Muirhead's Gaius, 4 § 2.)
We find it is used in connexion with some arbitria and actions ex
fide bona, where the defendant's liability was to be determined at
the discretion of the arbiter or judex. In all civil actions founded
on Delict the intentio frequently contains the terms : damnum
decidere oportere, § 37, for which some writers think praestare to
have been an equivalent.
448 DE ACTIONIBVS fiv. SS 1-9.
L 33
§ 3. Negativa. An action respecting a servitude was either Con-
fessoria or Negativa. If the plaintiff claimed a servitude over the
land or house of the defendant, his action was called Confessoria ;
if he denied that his own land or house was subject to a servitude,
his action was called Negativa (or Negatoria) in rem actio. In
Confessoria the intentio was of the form, si paret Aulo Agerio jus
esse eo fundo quo de agitur uti frui : in Negatoria of the form, si
paret Numeric Negidio jus non esse eo fundo de quo agitur uti frui
invito Aulo Agerio. In this action the plaintiff, probably, was not
bound to prove a negative, but only the existence of his own
ownership ; it would then be incumbent on the defendant to prove
affirmatively a limitation of this ownership. The actio negatoria is,
it must be remembered, maintainable by the owner of property, not
only when some one claims a servitude over it, but also in the case
of any other interference with his rights, short of actually depriving
him of possession. It is, like vindicatio, an actio in rem based on
title of ownership, so that in bringing it, it is incumbent on the
plaintiff to prove his ownership, which is a proverbially difficult
subject of proof.
The coexistence of actio Confessoria and actio negatoria with the
antithesis of Positive and Negative servitudes is at first sight
embarrassing : for we might suppose that an actio Confessoria of
a jus altius tollendi Was equivalent to an actio Negatoria of a jus
altius Non tollendi ; and that an actio Confessoria of a jus altius Non
tollendi was equivalent to an actio Negatoria of a jus altius tollendi :
so that the law would be encumbered by a redundancy of forms.
The following appears to be the explanation and to reconcile
statements in our authorities which at first sight are inconsistent.
The nature of the Servitude, Positive or Negative, alleged by the
plaintiff and, consequentially, the character of the action, Confessoria
or Negatoria, which he instituted, depended on the nature of the
facts on which he relied as his title and on the nature of the allega^
tions by which the defendant opposed his claim.
The plaintiff asserted a right of raising the height of his house
by an actio Confessoria of a jus altius tollendi, consistently with
the statement in § 3, if he alleged the Extinction of a former jus
altius Non tollendi, i. e. the recovery of his original freedom ; for
we have mentioned, 2 § 31, comm., that the extinction of an Urban
servitude could only be accomplished by the erection of a contrary
or antagonistic servitude: whereas he asserted it by an actio
Negatoria of a jus Non altius tollendi, consistently with Dig. 8, 5,
4, 7 (competit autem de servitute actio domino aedificii neganti
servitutem se vicino debere), if he denied that such a jus Non altius
tollendi had ever existed.
iv. §§1-9.] ACTIONVM DIVISIO 449
Similarly a right of prohibiting a neighbour from raising the
height of his house would probably be asserted by actio Confessoria
of jus Non altius tollendi if the defendant denied that such a right
had ever existed : by actio Negatoria of jus altius tollendi, con-
sistently with Inst. 4, 6, 2 (contra quoque de usufructu et de
servitutibus praediorum rusticorum, item praediorum urbanorum
invicem quoque proditae sunt actiones, ut quis intendat jus non
esse adversario . . . altius tollendi . . . ; istae quoque actiones in rem
sunt, sed Negativae. Quod genus actionis in controversiis rerum
corporalium proditum non est ; nam in his is agit qui non possidet :
ei vero qui possidet non est actio prodita, per quam neget rem
actoris esse), if the defendant contended that, though it once existed,
it had been extinguished by usucapio libertatis.
Whether an action was Confessoria or Negatoria might possibly
depend on the form in which the owner asserted the freedom of his
property from any claim on the part of another to interfere with it.
For instance, in Dig. 8, 5, 4, 7, where Ulpian is apparently speaking
of actio Negativa of jus Non altius tollendi, he presently adds : hoc
igitur intendo, habere me jus altius tollendi invito eo cum quo ago :
terms which seem more appropriate for expressing an actio Con-
fessoria of a jus altius tollendi ; and which probably would express
such an action, if the plaintiff intended to aver a reacquisition of his
original freedom.
In both Confessoria and Negatoria the first proof was, according
to the ordinary rule, incumbent on the plaintiff. The plaintiff
Negator of jus Non altius tollendi or Assertor of jus altius tollendi
had first to adduce proof in support of his contention — which in the
former case would be simply to prove the fact of his ownership —
before the defendant was called upon to prove his opposite contention :
and the plaintiff, as asserting a right of servitude, must begin with
adducing proof of its existence before the defendant is called upon
to disprove its existence or to prove its extinction. Cf. § 88, comm.
The abolition in England of real actions has destroyed most of
the likeness that once existed in the remedies provided by English
law for the protection or impeachment of Profits and Easements
(more or less identical with the rights which the Eomans called
Servitudes) and the remedies by which at Eoman law Servitudes
were protected or impeached. Before the abolition of Keal actions
each incorporeal hereditament was asserted or contested by some
Keal action corresponding either to actio Confessoria or to actio
Negatoria. After their abolition the only remedy is Trespass or
Trespass on the case (or their modern equivalents), personal actions
which procure not restitution of a real right, but satisfaction in
damages for injury sustained by its contravention, and which will lie
WHITTUCK G g
450 DE ACTIONIBVS [iv. §§ 1-9.
as often as the wrong is repeated : or the Chancery or other Division
of the High Court will stay the continuance or progress of a wrong
by the issue of an Injunction.
As the perfect right of Ownership is supplemented by a less
perfect right, the right of Possession, protected to some extent by
possessory interdicts instead of by vindicatio, the remedy of Owner-
ship ; so the fraction of Ownership or perfect right which forms
a Servitude is supplemented by an imperfect right, a right of Quasi-
possession, also protected by Interdicts, some identical in character
with those which protect Possession, some varying with the nature
of the Servitude, § 139.
§ 4. Gaius points out that the Eoman law of his day was illogical
in allowing condictio on account of stolen property, cf. Inst. 4, 6, 1 4,
no transfer of ownership being operated by theft. Eoman law
contained no disposition similar to that of English law, that property
in stolen goods passes by sale in market overt. Even in the hands
of a third person, an innocent purchaser, the thing remained the
property of the original owner, exempt from the potent chemistry
of usucapion. It follows that the action for obtaining restitution
logically competent to the owner who still remained owner was
vindicatio, and not an action based on an obligation to convey
ownership to the plaintiff.
In the condictio ex causa furtiva, instead of the intentio, Si paret
dare oportere, § 4, which implies that the plaintiff is not owner,
we might have expected him to sue with the intentio, quidquid paret
Dare facere oportere, which might be merely a form of claiming
damages for the injury, and accordingly would be consistent with
his ownership. The explanation why the other formula was allowed
seems to be that at the time when this remedy on account of furtum
was established condictio could only be brought on account of certa
pecunia or certa res. The form of condictio was perhaps adopted
in this case, though at the cost of an anomaly, in order to make the
action transmissible against the heirs of the delinquent, a delictal
action being intransmissible.
§ 5. Condictio is an actio stricti juris, see §§ 18-20, comm. (For
the distinction which is sometimes drawn between condictio and
other kinds of actiones stricti juris see Sohm, § 80, n. 6.) It therefore
excludes, besides all actions in rem, actions bonae fidei (which had an
intentio Quidquid dari fieri oportet ex fide bona, § 47), and praetorian
actions in personam ; moreover actions ex delicto with the exception
of condictio furtiva, which, as we have seen, is anomalous, § 4, belong
to a different category. In its original and strict form it was
always Condictio certi, with an intentio, Si paret dare oportere. It
is either brought to recover a certain sum of money, Condictio certae
iv. §§1-9.] ACTIONVM DIVISIO 451
pecuniae, or is brought to recover corn (hence its name), land or
a slave or any other certain thing, and then is called Condictio
triticaria, e. g. siparet Numerium Negidium Aulo Agerio tritici Africani
optimi modios tot dare oportere, quanti ea res est, &c., Lenel, p. 190.
Condictio then, strictly speaking, denotes the certainty and indivi-
duality of the property claimed apart from the ground on account of
which it was claimed. But in later Eoman law a condictio incerti,
corresponding to an actio ex stipulatu for something unascertained
in amount, is spoken of, perhaps with an intentio, quidquid paret dare
facere oportere. Cf. Sohm, 1. e. ; Lenel, § 57.
In condictio certae pecuniae both the intentio (which names certa
pecunia) and the condemnatio are certae. In condictio triticaria the
intentio (which names some other certa res) is certa ; the con-
demnatio (quanti ea res erit) is incerta. In condictio incerti both
intentio and condemnatio are incertae, § 49, comm.
§ 6. Rights may be divided into primary and secondary. Primary
rights are antecedent to wrong, such as ownership. Secondary or
sanctioning rights imply an antecedent wrong, and their title is a
breach of some primary right, as a breach of contract or a delict.
Both these classes of rights and the corresponding duties are
creations of the law : for every law is both imperative and coercive ;
that is, both by its command confers a primary right and imposes a
corresponding primary duty, and sanctions its command by conferring
a secondary right and imposing a secondary duty, that is, by confer-
ring a remedy and employing coercion in the event of disobedience.
The sanctions of the civil law are either reparative and remedial
or punitory and preventive ; and in one case the object of the law is
the RESTORATION of the plaintiff by restitution or compensation, and
then his primary right is the measure of his redress or sanctioning
right ; in the other case it is the repression of similar wrongs by
inflicting a PUNISHMENT on the defendant which may operate as a
terror to himself in future (reformatory) and to other wrongdoers
(exemplary) ; and then the sanctioning right may far exceed his
primary right. Even RESTORATION may embrace the mediate as well
as the immediate value of the primary right, 3 § 212, comm.
The language of Roman jurisprudence makes no distinction be-
tween a primary right and a sanctioning right when the sanction is
purely RESTORATIVE, even though it include indirect or consequential
damages, calling both by the name of the Object (Res). The redress
directly given by the Roman law under the formulary procedure
was always pecuniary damages, and we might have expected Roman
jurists above all others to distinguish between the objects of the
plaintiffs primary and secondary right ; but the indirect result of
a real action might be the recovery of specific restitution, and it was in
Gg 2
452 DE ACTIONIBVS [iv. §§ 1-9.
view of this type of redress that the Roman lawyers were led to speak
of the objects of primary and reparative secondary rights as identical.
If we next proceed to inquire what classes of actions are brought
for reparation or to recover the object of a primary right (rei perse-
cutio), and what for the recovery of a penalty (poenae persecutio),
§§ 6-9, we shall have no difficulty in perceiving that real actions and
actions on contract belong to the former class (rei persecutio) ; and
that of actions on delict, some are reparatoiy, as e. g. condictio
furtiva, while others have for their object a penalty (poenae persecutio),
such as the actio furti, while in some again both objects are combined
e.g. actio vi bonorum raptorum. Inst. 4, 6, 16-19. The effect of
real actions and of actions on contract is restoration : they leave the
plaintiff no richer and the defendant no poorer in respect of pro-
perty than he was at first; whereas the purely penal actions leave the
plaintiff, in respect of property, richer, and the defendant poorer.
But the remaining divisions of actions on delict, those brought to
recover indemnification for damage to property, are more ambiguous
in character. If we merely regard their effect on the plaintiff they
seem to be purely reparative, for they leave the plaintiff no richer ;
but if we regard their effect on the defendant they seem to be
penal, for if the wrong done by the defendant was a destruction
property, compensation to the plaintiff will leave the defendant
poorer. Those actions on delict, which may be called vindictive
(quae ad ultionem pertinent, quae vindictam continent), as having
for their special object the satisfaction of the injured feelings of tl
plaintiff, such as the actio injuriarum, have the effect of penalising
the defendant, and so rather resemble the purely penal actions
delicto than such as are merely reparatory.
We have seen, 3 § 212, comm., that, even under a contract, daim
could include indirect losses or the mediate value of the prims
right, and might, according to, the limitation made by Justinw
Cod. 7, 47, 1, amount to twice the immediate value of the subject
matter of the obligation, where this can be ascertained : and tha
in the case of actions, founded on delict, damages, as distinct froi
penalty, were not restricted to any maximum.
But delictal actions, whether they are regarded as rei persecutio,
or as poenae persecutio, or as mixtae, are generally subject to the
following rules : they are not passively transmissible, i. e. they are
not maintainable against the heir of the defendant, except so far
the inheritance he has succeeded to was enriched by the delict, unit
there has been joinder of issue (lis contestata) against the wrongdoer,
in which case the delictal obligation is novated, 3 § 1 80, and become
passively transmissible ; moreover, they are maintainable against eacl
one of several delinquents for the entire damages (in solidum) ; anc
iv. §§1-9.1 ACTIONVM DIVISIO 453
2 J J
they can be brought in the form of noxal actions against the pater-
familias or dominus. See Grueber, Lex Aquilia, p. 275. Moreover,
Praetorian penal actions can, generally speaking, only be maintained
within a year (annus utilis) from the commission of the delict.
It is to be noticed that in case of the death of the delinquent, the
plaintiff had not always an adequate remedy under the Eoman law,
when the inheritance was not enriched by the delict, e. g. in the case
of damage to property under the lex Aquilia; and English common
law even went beyond the rule of Koman law in this respect, since its
principle was that no action of Tort (a term which does not coincide
with but is wider than that of Delict) would lie against the executor
or administrator of the wrongdoer. [The maxim, actio personalis
moritur cum persona, often used by expositors of English law, must
have originated in a misprint of personalis for poenalis.] But now,
by 3 and 4 Will. IV, c. 42, an action for injury to property, as
opposed to actions for slander and the like (vindictive actions, which die
with the person), is maintainable against the executors and adminis-
trators of the wrongdoer, provided the wrong was committed within
six months before his death and the action is brought within a year
after his death, if it was an injury to real property, or within six
months after his executors or administrators have taken on themselves
administration, if it was an injury to personal property. Thus within
the limits of this statute the English plaintiff has an ampler remedy
than the Koman. See Pollock's Law of Torts, Ch. III. § 2.
It should be remembered respecting the extinction of delictal
actions (i) that by reason of death, Vindictive suits are incapable of
either active or passive transmission (transmission to the heir of the
plaintiff or against the heir of the defendant), other delictal actions
being capable of active but incapable of passive transmission, § 111,
comm. ; (2) that by prescription, Praetorian Penal suits are generally
limited to a year, while Civil actions are 'perpetuae,' §§ 110-113,
comm. ; (3) that in the case of concurrence, i. e. the merger, absorp-
tion, or alternation of several coexisting suits, one penal action may
not consume another on account of the same offence. (As to the
interpretation of the statement in the Institutes (4, 9, 1) numquam
actiones praesertim poenales de eadem re concurrentes alia aliam con-
sumit, see Dr. Moyle's note, and cf. Windscheid, Pandekten, 2 § 326,
n. 8 & 9.) The importance of the distinction between reparatory and
purely penal actions has disappeared in modern times in consequence
of the desuetude of purely penal actions.
Damages in English law is a general term for the pecuniary sum
awarded to the plaintiff in a civil action ; i. e. a claim for damages
includes not only compensation for loss of property, but also what is
recovered in such actions, as those for assault or libel.
454 DE ACTIONIBVS [TV. §§ 10-20.
§ 7. One action upon contract, namely, the action against a de-
positary, was brought for double the value of the deposit, i. e. was
partly penal, if the deposit was necessitated by fire, shipwreck, tumult,
or similar distress.
§ 8. In Justinian's time it was fully established that the penalty
of Eapine was only thrice the value of the thing taken with violence,
that is, the quadruple damages were partly penal and partly repara-
tory ; accordingly the actions vi bonorum raptorum and the real or
personal action to recover the thing taken or damages could not also
be brought, that is they were not concurrent or cumulative, Inst.
4, 6, 19. For a case of quadruple damages, of which £ was restorative
and f penal, under 9 Anne, c. 14, against Gaming, see Stephen's
Blackstone, Introduction.
§ 9. The actio judicati was brought against a defendant to enforce
the condemnation of the judex. If he defended this action he was
liable to be condemned to pay twice the amount of the judgment debt,
and was required to give security judicatum solvi. This security
was the modern representative of the interposition of a Vindex in
the old proceeding of manus injectio. In manus injectio pro judicato
it seems the Vindex who lost the suit was condemned, as a penalty
for his unwarranted interference, to pay a sum equal to the original
judgment debt ; in other words, to discharge the debtor he had to pay
twice the amount of the debt. In manus injectio pura the defendant
was so to say his own Vindex, and, if he lost, was condemned in
double the debt. See §§ 21-25.
The actio depensi [see above, 3 § 127] was introduced by a lex
Publilia of uncertain date, and as it was only given to the sponsor,
would become obsolete when the sponsor was superseded by the
fidejussor.
Legatum per damnationem no longer existed in the time of
Justinian, who confined the action of the legatee against the heres for
twice the value of the legacy to the case of bequests to churches
and religious institutions. Inst. 3, 27, 7.
§10. Quaedam praeterea sunt § 10. Some actions are moulded
actiones quae ad legis actionem upon, and contain a reference
exprimuntur, quaedam sua ui to, the forms of statute-process;
ac potestate constant, quod ut others are unrelated and inde-
manifestum fiat opus est ut pendent. This makes some ex-
prius de legis actionibus lo- Plan*tion of the statute-process
quamur. system necessary.
§ 11. Actiones quas in usu § n. These actions, which our
ueteres habuerunt legis actiones Old jurisprudence employed, are
appellabawtur uel ideo, quod called statute-process, either be-
legibus proditae erant (quippe cause they were appointed by
iv. §§ 10-20.]
LEGIS ACTIONES
455
tune edicta praetoris, quibus
conplures actiones introductae
sunt, nondum in usu habeban-
tur), uel ideo, quia ipsarum
legum uerbis accommodatae
erant et ideo inmutabiles pro-
inde atque leges obserua&cratur.
unde eum, qui de uitfibus succi-
sis ita egisset, ut in actione uites
nominaret, responsum est rem
perdidisse, cum debuisset ar-
bores nominare eo, quod lex xil
tabularum, ex qua de uitibus
succisis actio conpeteret, gene-
raliter de arboribus succisis
loqueretur.
§ 12. Lege autem agebatur
modis quinque : sacramento,
per iudicis postulationem, per
condictionem, per manus iniec-
tionem, per pignoris capionem.
§ 13. Sacramenti actio gene-
ralis erat ; de quibus enim rebus
ut aliter ageretur lege cautum
non erat, de his sacramento
agebatur. eaque actio proinde
periculosa erat | falsi ,
atque hoc tempore periculosa
est actio cer|tae creditae pecu-
niae propter sponsionem qua
periclitaturreus, si temere neget,
(ety restipulationem qua peri-
clitatur actor, si non debitum
petat ; nam qui uictus erat
summam sacramenti praestabat
poenae nomine, eaque in pub-
licum cedebat praedesque eo
nomine praetori dabarctur, non
ut nunc sponsionis et restipula-
tionis poena lucro cedit aduer-
sario qui uiceri£.
§ 14. Poena autem sacramenti
aut quingenaria erat aut quin-
quagenaria. nam de rebus mille
aeris plurisue quingentis assi-
bus, de minoris uero quinqua-
ginta assibus sacramento con-
statute before the edict of the
praetor, the source of many new
actions, began to be published,
or because they followed the
statute itself and therefore were
as immutable as the statute.
Thus, it was held that a man
who sued another for cutting his
vines, and in his action called
them vines, irreparably lost his
right because he ought to have
called them trees, as the enact-
ment of the Twelve Tables, which
confers the action concerning the
cutting of vines, speaks generally
of trees and not particularly of
vines.
§ 12. There were five forms of
statute-process, Sacramentum, Ju-
dicis postulatio, Condictio, Manus
injectio, and Pignoris capio.
§ 13. The actio sacramenti
was the general form of action,
for wherever no other mode was
appointed by statute, the pro-
cedure was by sacramentum.
It was a form of action attended
with risk to the parties, like
the modern action to recover
money lent, wherein the defendant
and plaintiff by the sponsio and
restipulatio respectively forfeit a
penal sum, if unsuccessful. Ac-
cordingly the party who was
beaten had to pay the amount of
the stake (summa sacramenti) by
way of penalty ; but it went to
the public treasury, sureties on
this account having to be given
to the Praetor, instead of going
as it does now by sponsio and
restipulatio to the profit of the
winning side.
§ 14. The penal sum of the
sacramentum was either five
hundred asses or fifty asses ; five
hundred when the object of dis-
pute was valued at a thousand or
upwards, fifty when at less than
456
DE ACTION1BVS
[iv. §§ 10-20.
tendebatur ; nam ita lege xn
tabularum cautum erat. («0
si de \ibertate hominis contro-
uersia erat, etiamsi pretiosissi-
mus homo esset, tamen ut L
assibus sacramento contende-
retwr, eadem lege cautum est
fauore scilicet libertatis, ne
owerarentur adsertores. -
(11 uersus in C legi nequeunt)
§ 15. omnes actiones
(5 uersus in C legi nequeunt)
-captus — |
(5 uersus in C legi nequeunt)
1 ad iudicem
accipiendum uenirent; postea
nero reuersis dabatur. ut autem
(die) xxx iudex daretur, per
legem Pinariam factum est;
ante earn autem legem statim
dabatur iudex. illud ex supe-
rioribus intellegimus, si de re
minoris quam (jif) aeris ageba-
tur, quinquagenario sacramento,
non quingenario eos contendere
solitos fuisse. postea tamen
quam iudex datus esset, conpe-
rendinum diem, ut ad iudicem
uenirent, denuntiabant. de-
inde cum ad iudicem uenerant,
antequam apud eum causam
perorarent, solebant breuiter ei
et quasi per indicem rem expo-
nere ; quae dicebatur causae
comectio, quasi causae suae
in breue coactio.
§ 16. Si in rem agebatur,
mobilia quidem et mouentia,
quae modo in ius adferri addu-
ciue possent, in iure uindica-
bantur ad hunc modum : qui
uindicabat /estucam tenebat ;
deinde ipsam rem adprehende-
bat. ueluti hominem, et ita dice-
bat HVNC EGO HOMINEM EX IVBE
QVIKITIYM MEVM ESSE AIO SE-
CVNDVM SVAM CAVSAM. SICVT
a thousand. This was provided
by the law of the Twelve Tables.
When, however, personal freedom
was the subject of dispute, how-
ever valuable a slave the man
whose status was litigated might
be, the penal sum was only fifty
asses. This was enacted by the
Twelve Tahlesinfavour of liberty,
in order that thevindexorassertor
of liberty might never be deterred
by the magnitude of the risk.
§ 1 5. [When the sacramentum
was a personal action, that is to
say, instituted to enforce an obliga-
tion, after giving securities for the
stake, the parties left the praetor's
court, having arranged to reappear
on the thirtieth day] to receive a
judex. When they appeared again
the Praetor nominated a judex.
This was in pursuance of the lex
Pinaria, before which the judex
was named at once. If the ob-
ject of dispute was worth less than
a thousand asses, the stake, as
before mentioned, was only fifty.
After the judex was named, they
gave mutual notice to appear be-
fore him on the next day but one.
At the appearance before the judex,
before the case was fully developed,
it was stated in a concise and
summary form, and this summary
statement was called causae con-
jectio.
§ 16. When the sacramentum
was a real action, movables and
animals that could be brought or
led into the presence of the magis-
trate were claimed before him in
the following fashion. The vindi-
cant held a wand, and then grasp-
ing the object itself, as for instance
a slave, said : ' This man I claim
as mine by due acquisition, by
the law of the Quirites. See ! as
iv. §§ 10-20.]
SACRAMENT™
457
DIXI, ECCE TIBI, VINDICTAM IN-
POSVI, et simul homini festucam
inponebat ; aduersarius eadem
similiter dicebat et faciebat ;
cum uterque uindicasset, praetor
dicebat MIT TITEAMBO HOMINEM;
illi mittebant ; qui prior uindi-
c&(uerat, ita alterum interro-
</a)bat POSTVLO ANNE DICAS,
QVA EX CAVSA VINDICAVEKIS ;
ille respondebat ivs FECI SICVT
VINDICTAM INPOSVI ; deinde
qui prior uindicauerat, dicebat
QVANDO TV INIVKIA VINDICA-
VISTI, D AERIS SACRAMENTO TE
PEOVOCO ; aduersarius quoque
dicebat similiter ET EGO TE ;
scilicet (si de re M aeris plu-
risque agebatur, D, si de mi-
noris,) L asses sacramenti
nominabant; deinde eadem se-
quebantur quae cum, in perso-
nam ageretur; postea praetor
secundum alterum eorum uin-
dicias dicebat, id est interim
aliquem possessorem constitue-
bat, eumque iubebat praedes
aduersario dare litis et uindici-
arum, id est rei et fructuum ;
alios autem praedes ipse praetor
ab utroque accipiebat sacra-
menti, quod id in publicum
cedebat. festuca autem ute-
bantur quasi hastae loco, signo
quodam iusti dominii, quod
maxime sua esse credebantquae
ex hostibus cepissent ; unde in
centumouralibus iudiciis hasta
praeponitur.
§ 17. Si qua res talis erat, ut
sine incommode non posset in
I have said, I have put my spear
(vindicta) on him,' whereupon
he laid his wand upon the man.
The adversary then said the same
words and performed the same
acts. After both had vindicated
him, the praetor said : ' Both
claimants quit your hold,' and
both quitted hold. Then the
first claimant said, interrogating
the other: 'Answer me, will you
state on what title you found your
claim ? ' and he replied : ' My
putting my spear over him was
an act of ownership.' Then the
first vindicant said : ' Since you
have vindicated him in defiance
of law, I challenge you to stake
as sacramentum five hundred
asses ' : the opposite party in turn
used the same words, 'I too
challenge you.' That is to say,
if the thing was worth more than
a thousand asses, they staked five
hundred asses or else it was only
fifty. Then ensued the same cere-
monies as in a personal action.
The praetor then awarded to one
or other of the claimants posses-
sion of the thing pending the suit,
and made him bind himself with
sureties to his adversary to restore
both the object of dispute and the
mesne profits or value of the in-
terim possession, in the event of
losing the cause. The praetor also
took sureties from both parties
for the stake (summa sacramenti)
which the loser was to forfeit.
Now the wand which they used
represented a lance, the symbol
of absolute dominion, for what a
man had captured from the enemy
was held to be most distinctly his
own. Accordingly in Centum-
viral trials (where questions of
inheritance are decided) a lance
is set up in front as an ensign
or symbol.
§ 17. If the object of dispute
was such as could not conveniently
458
DE ACTIONIBVS
[iv. §§ 10-20.
ius adferri uel adduci, ueluti
si columna aut grex alicuius
pecoris esset, pars aliqua inde
sumebatur ; deinde in earn par-
tern quasi in totam rem prae-
sentem fiebat uindicatio. itaque
ex grege uel una ouis aut capra
in ius adducebatur, uel etiam
pilus inde sumebatur et in ius
adferebatur, ex naue uero et
columna aliqua pars defringe-
batur. similiter si de fundo uel
de aedibus siue de hereditate
controuersia erat, pars aliqua
inde sumebatur et in ius adfere*
batur et in earn partem perinde
atque in totam rein praesentem
fiebat uindicatio, ueluti ex fundo
gleba sumebatur et ex aedibus
tegula, et si de hereditate con-
trouersia erat, aeque
(48 uersus in C perierunt)
-qualem-
capiendum iudicio | —die XX.Y
ad iudicem capiendum praesto
esse de\bebant.
§ 18. CWdicere autem de-
nuntiare est prisca lingua, ita-
que haec quidem actio proprie
condictio uocabatur ; nam actor
aduersario denuntiabat, ut ad
iudicem capiendum die xxx
adesset. nunc uero non proprie
condictionem dicimus actionem
in personam {esse, qua} inten-
dimus DABI NOBIS OPORTEEE ;
nulla enim hoc tempore eo
nomine denuntiatio fit.
§ 19. Haec autem legis actio
constituta est per legem Siliam
et Calpurniam, lege quidem
Silia certae pecuniae, lege uero
Calpurnia de omni certa re.
§ 20. Quare autem haec actio
desiderata sit, cum de eo quod
be carried or led before the praetor,
as for instance a column, or a herd
of cattle, a portion was brought
into court, and the formalities were
enacted over it as if it were the
whole. Thus if it was a flock of
sheep or herd of goats, a single
sheep or goat,% or even a single
tuft of hair was taken before the
magistrate ; if it was a ship or
column, a fragment was broken
off and brought similarly ; if it
was land, a clod ; or if it was a
house, a tile ; and if it was a
dispute about an inheritance, then
in the same way ......
on the thirtieth day when they
were bound to appear in court to
receive a judge.
§ 18. Condicere in old Latin
was equivalent to denuntiare, to
give notice. Hence this action
was appropriately called condictio
(notice), for the plaintiff used to
give notice to the defendant to
appear before the praetor on the
thirtieth day to receive a judge.
The name is now applied with
less propriety to a personal action
by which we sue for a transfer of
property, for notice forms no part
of the procedure.
§ 19. This form of statute-
process was created by the lex
Silia and lex Calpurnia, being
prescribed by the lex Silia for the
recovery of a certain sum, and
extended by the lex Calpurnia to
the recovery of any other certain
thing.
§ 20. Why a new action was
needed, when an obligation to
iv. §§ 10-20.] SACRAMENTVM 459
nobis dari oportet, potuerimus transfer property to a person
aut Sacramento aut per iudicis could be enforced either by Sacra-
postulationem agere, ualde mentum or by Judicis postulatio,
quaeritur. is a question much discussed.
§§ 10-17. The discovery of the MS. of Gaius by Niebuhr threw
a flood of light on the history of Koman Civil Procedure, and not
least on the early process by legis actio. Although the forms of
legis actio had only an historical interest at the time when Gaius
wrote, he begins his account of procedure by noticing them, because,
as he tells us, § 1 0, the actions which were then in use had been to
some extent founded on them. (For the literature concerning the
legis actiones see Muirhead, § 13.)
The term legis actio is correlative to lege agere, and thus means
action determined by lex, i. e. the Twelve Tables and other leges, §11,
agere signifying the observance of the formal acts prescribed by
law for prosecuting legal claims. (Cf. Nettleship, Contr. to Latin
Lexicogr, s. v. actio.) The legis actiones were either legal forms pre-
paratory to bringing a case to trial> or prescribed forms for obtaining
execution, rather than actions in the strict sense. To the first class
belong the actio sacramenti, per judicis postulationem, and per condic-
tionem; to the latter per manus injectionem and per pignoris capioriem.
The deposit of a sacramentum by the two parties to a dispute to
bring the matter to an issue was the basis of what seems to be
the earliest legis actio. In contrast with the other legis actiones the
actio sacramenti was a general one, § 1 3, de quibus enim rebus ut
aliter ageretur lege cautum non erat, de his Sacramento ageretur.
The forms of action per judicis postulationem and per condictionem
seem to have been introduced subsequently with a more limited
object. Thus the legis actio sacramenti is both in rem and in
personam. But of the procedure in personam we have no information
on account of the lacuna in the MS. § 15, which can only be filled up
in a general sense. Instead of the assertion of ownership, as in
vindicatio, the creditor would claim from the debtor his debt — aio te
mihi x milia aeris dare oportere. Instead of a contra-vindicatio
there would be a denial on the part of the debtor of the obligation,
and on this denial the summa sacramenti would be staked in a
manner corresponding to that which was followed in the actio in
rem. The proceedings would be simpler and less archaic in character
than in the real action. Whether, as has been suggested, the actio
sacramenti was at first always a claim to a thing, which in the case
of a debt would be the body of the debtor, we do not know, but
the conception of obligation is so rudimentary in early times, as
to make it not improbable. (Cf. Brinz, Grunhut's Zeitschr. 1, 23 ;
Muirhead, § 34.)
460 DE ACTIONIBVS [iv.§§ 10-20.
The sacramentum or money solemnly staked was, it would seem,
originally deposited with the Pontifex and applied, when forfeited,
to meet the expenses of the public sacrifices ; whence its name.
(According to Varro de L. L. 5, 180, it was deposited ad Pontem ; for
different interpretations of this passage see Muirhead, Appendix, N. E.)
Afterwards, instead of an actual deposit, security [praeves, prae-
vides, Lex Agr. C. I. L. 1, 200, 46, nianceps, praevides, praediaque.
According to Nettleship (op. cit. Praes), Praes was originally in all
probability an adjective, meaning ready, praes and vas being thus
distinguished : Praes is the security for a payment or performance
of a contract, while Vas is the security for a person's appearance in
court. Cf. Varro 6, 74, ' Sponsor ' et ' Praes ' et l Vas ' neque idem
.... Itaque Praes qui a magistratu interrogatus in publicum ut
praestet . . . dicit ' Praes.' Vas appellatur qui pro altero vadimonium
promittit] for the penal sum was given by both parties to the praetor.
Sohm (§ 48, n. 2) supposes that a sacramentum was originally not
merely a stake of money against money, but of oath against oath
(i. e. sacramentum in its ordinary sense), and hence on account of
the force attaching to oaths was binding on the magistrate, but this
is only conjectural.
In the ceremony as described by Gaius we may distinguish three
stages : first, an oral pleading or altercation, alluded to in the sub-
sequent words ' sicut dixi ' ; secondly, a trial by battle, the original
method of deciding disputed rights; and thirdly, the reference to
peaceful adjudication. We may suppose that on a memorable day in
the progress of civilization, before the combat had terminated fatally
to one of the combatants, some one like Numa Pompilius, of sufficient
authority to make so great an innovation, interposed and induced the
parties to refer the dispute to arbitration. The case would afterwards
serve as a model and precedent to future litigants; but, from a
superstitious fear of losing the sanction of immemorial custom, the
earlier stages of the process would still continue to be mimicked in
solemn pantomime. So, in English law, trial by Wager of battle,
introduced by William the Conqueror, was first partially superseded
by the Grand assize, or trial by jury, an alternative substituted by
Henry II, and was finally abolished in the reign of George III.
'The tenant [defendant] shall not be received to wage battle, nor
shall issue be joined, nor trial had, by battle, in any writ of right,'
59 Geo. Ill, ch. 46.
The use of the rod or wand as representative of the spear, the
symbol of dominion, may be paralleled in English law by the deli-
very of a staff as the symbol of power and possession in the convey-
ance of copyholds. 'The conveyance of copyhold estates is usually
made from the seller to the lord or his steward by delivery of a rod
iv. §§ 10-20.] CONDICTIO 461
or verge, and then from the lord to the purchaser by redelivery of
the same in the presence of a jury of tenants,' Blackstone, 2, 20.
§ 16. The specification of the title or ground of claim (expressio
causae) in a real action (secundum suam causam, sicut dixi) may have
been, as Bethmann-Hollweg supposes (R. C. P. 1, 139), limited to
actions where the object claimed was a person, and was then designed
to distinguish whether the person was claimed as a son, wife, bondsman
(mancipium), or slave. See 1 § 134, comm. More probably, however,
it was universally required in statute-process, though not in the for-
mulary system, for the purpose of ascertaining in all cases the ground
on which each party claimed, as whether it was on account of a manci-
pation, a surrender before the magistrate, or usucapion, 2 § 43, comm.
After completing his account of Sacramentum, Gaius probably
proceeded to explain the nature of Judicis postulatio in the 48
lines of the MS., § 17 a, which are wanting, though in the latter
part of them he had gone on to treat of the condictio. Of its process
we have a fragment in the formula derived from Valerius Probus,
the first two letters of which, however, are very doubtful: Te,
Praetor, judicem arbitrumve postulo uti des, ' I pray you, Praetor,
to appoint an arbiter or judge.' It seems to be distinguished from
actio sacramenti in personam and from condictio not only in respect
of its form, but by the greater freedom allowed to the judex
or arbiter, appointed by the Praetor, at the request of one of the
parties, to try the suit. Thus it was apparently the prototype of
actions bonae fidei, as opposed to actions stricti juris, that is of
actions for enforcing obligations which might require an equitable
balancing by the judex or arbiter of opposite claims, and an assess-
ment by him of such damages as good faith required to be paid to the
plaintiff. It would thus be suitable in cases for which the actio sacra-
menti in personam would supply an insufficient remedy. A party
taking advantage of this procedure would have to show that his case
came under the provisions of the Twelve Tables, or of some other
lex, and that it was suitable to an arbitrium. The actions Finium
regundorum, Familiae herciscundae, Aquae pluviae arcendae, de
arboribus succisis, which are mentioned in or derived from the Twelve
Tables, appear to have been tried by an arbiter or arbiters, that is, to
have been forms of Judicis postulatio. For an account of views of
different writers respecting the origin and nature of Judicis postulatio
see Muirhead, Roman Law, § 35.
The phrase manum conserere is sometimes used, though not by
Gaius, in reference to the actio sacramenti (Cic. pro Mur. 12, 26 ; Gell.
20, 10 ; Varro, L. L. 6, 64), meaning, perhaps, the act of the parties in
laying hold at the same time of the object in dispute or engaging in
a conflict about it. This mimic conflict originally took place on the
462 DE ACTIONIBVS [iv. §§ 10-20.
land itself, which was vindicated, in the presence of the magistrate
(in jure manum conserere), but later a practice grew up, which is
referred to by Cicero, for the parties, by order of the magistrate, going
by themselves attended by witnesses to the place, and after duly
observing the ceremonial returning to the Court. Finally this was dis-
continued, and as we see by the text, § 17, a part of the thing was
brought in the first place before the magistrate to represent the whole.
After the vindication and counter-vindication had taken place, the
praetor had to assign interim possession of the vindiciae, or object
which was claimed, to one of the parties, and to take security from him
that he would be ready to produce this object of litigation (called
here lis, cf. Cic. Mur. 12, 27) and the mesne profits, which are denoted
by the term vindiciae (praedes litis et vindiciarum). Gaius gives no
indication of the principle on which the praetor acted in making
this assignment, simply saying secundum alterum eorum vindicias
dicebat. In later process the possessor, who was the defendant in the
action, would be allowed to remain in possession, on giving security
that he would satisfy the judgment, and it would be for the vindicant
to prove his title. The difference here is that the two parties stand on
an equal footing, each of them in turn vindicating the thing, and so
neither of them being in the position of defendant. It seems reason-
able, however, to suppose that the praetor would be governed by the
same motives in making his award as influenced him in granting
the possessory interdicts, so that the party seeking to evict the other
would not as a rule obtain possession till he had proved his title.
The Condietio was unknown to the Twelve Tables, having been
created by the lex Silia of a somewhat later but uncertain date, and
extended by the lex Calpurnia, the date of which is also uncertain.
We see by the text, § 20, that the reason for instituting another actio
in personam, when the actio sacramenti and per judicis postulationem
were already available, was not clear to the jurists at the time when
Gaius wrote. But the object of the Lex Silia in instituting the con-
dictio may have been to supply a more prompt and efficient remedy for
the recovery of money debts than previously existed, a reform in pro-
cedure which would be required when summary execution on account
of nexum was abolished. By this new form of action a creditor could
forthwith give notice to his debtor, called condictio, from which the
proceeding derives its name, to appear before the magistrate in thirty
days to have a judex appointed. If, as there is some reason for
thinking, the serving of this notice was an extra-judicial act, it would
be easily executed by the party interested. And should the debt
not have been satisfied within the thirty days, the creditor was
entitled to a judicium, depending on a simple and clearly defined
issue. Thus the proceedings in jure would be much curtailed.
iv. §§21-25.] MANVS INIECTIO 463
Moreover, condictio had the advantage that it could be accompanied
by the sponsio and restipulatio, § 1 3, a wager entered into by mutual
stipulations of the parties conditioned for the forfeiture by the van-
quished to the successful party instead of to the treasury of one third
of the sum in dispute, in addition, on the part of the defendant, to the
original debt, § 171. The stake or penalty is called by Cicero legitima
pars, ' statutable sum ' : Pecunia petita est certa ; cum tertia parte
sponsio facta est. . . . Pecunia tibi debebatur certa quae nunc petitur
per judicem, in qua legitimae partis sponsio facta est, Pro Eoscio,
4, 5 : whence we may suppose that this stake or penalty was fixed by
the lex Silia, the statute which created the procedure by condictio.
At this period then, on account of the advantages of judicis postu-
latio and condictio, the Saeramentum, would be practically confined
to Real actions before the Centum viral Court : Condictio would be the
appropriate Personal action for recovering a certain sum or thing
due upon a mutuum, which had taken the place of nexum, and also
for enforcing a promise made by stipulation to pay certa pecunia or
certa res, such promise by stipulation being perhaps first made action-
able by the lex Silia, while the same process would be applicable to
a transcripticium nomen ; and Judicis postulatio was possibly the
appropriate action in the case of arbitria, and for enforcing obligations
to reconvey property which had been mancipated subject to a fiducia.
But it must be remembered- that the law of contract was at this
time confined within narrow limits.
§ 21. Per manus iniectionem § 21. Manus injectio was the
aeque {de} his rebus agebatur, procedure specially prescribed by
de quibus ut ita ageretur, lege statute in certain circumstances ;
aliqua, cautum est, ueluti iudi- as, for instance, against a judg-
cati lege xil tabularum. quae ment debtor by the law of the
actio talis erat : qui agebat, sic Twelve Tables. The procedure
dicebat QVOD TV MIHI INDICT ™ M follows : the plaintiff said
TVS (siue DAMNATVS) ES SES- Whereas you have been adjudged
TEET VM X MILI A, QVANDOC NON or <^emned to pay me ten thou-
sand sesterces, which sum you
SOLVISTI, OB EAM REM EGO TIBI ^ ^^ ^ therefore I
SESTEKTIVM X MILIVM IVDICATI arrest &s judgment debtor
MANVJflNiclO,etsimiilaliquam for ten thousand sesterces,' and
partem corporis ems pre/iende- at the same time iai<j hands on
bat. nee licebat indicate manum him; and the debtor was not
sibi depellere et pro se lege allowed to resist the arrest, or
agere ; sed umdicem dabat, qui use the statute-process in his own
pro se causam agere solebat; defence, but gave a vindex to
qui uindicem non dabat, do- advocate his cause, or, in default,
mum ducebatur ab actore et was taken prisoner to the plain-
umciebatur. tiff's house, and put in chains.
§ 22. Postea quaedam leges § 22. Afterwards manus in-
464
DE ACTIONIBVS
[iv. §§ 21-25.
ex aliis quibusdam causis pro
iudicato manus iniectionem in
quosdam dederunt: sicut lex
Publilia in eum, pro quo sponsor
depen-disset, si in sex mensibus
proximis, quam pro eo depen-
sum esset,non soluisset sponsor!
pecuniam ; item lex Furia de
sponsu aduersus eum, qui a
sponsore plus quam uirilem
partem exegisset; et denique
conplures aliae leges in multis
causis talem actionem dederunt.
§ 23. Sed aliae leges ex qui-
busdam causis constituerunt
quasdam actiones per manus
iniectionem, sed puram, id est
non pro iudicato : ueluti lea;
(Furia) testamentaria aduer-
sus eum, qui legatorum nomine
mortisue causa plus M assibus
cepisset, cum ea lege non esset
exceptus, ut ei plus capere
liceret ; item lex Marcia aduer-
sus faeneratores, ut si usuras
exegissent, de his reddendis per
manus iniectionem cum eis age-
retur.
§ 24. Ex quibus legibus et si
quae aliae similes essent, cum
agebatur, (reo licebat) manum
sibi depellere et pro se lege
agere. nam et actor in ipsa
legis actione non adiciebat hoc
uerbum PRO IVDICATO, sed
nominata causa ex qua agebat
ita dicebat OB EAM KEM EGO
TIBI MANVM INICIO; cum hi,
quibus pro iudicato actio data
erat, nominata causa ex qua
agebatit ita inferebant OB EAM
BEM EGO TIBI PRO IVDICATO
MANVM INICIO. nee me prae-
terit in forma legis Furiae
testamentariae PRO IVDICATO
uerbum inseri, cum in ipsa lege
non sit; quod uidetur nulla
ratione factum.
jectio was given by various laws
against quasi judgment debtors,
as by the lex Publilia against the
principal whose debt had been
paid by his sponsor, unless he
indemnified his sponsor within
six months from the payment of
the debt ; by the lex Furia de
Sponsu against the creditor who
had exacted from one of several
sponsors more than his ratable
share ; and by various other
statutes in a number of cases.
§ 23. Other statutes established
that certain actions on particular
grounds should be enforced by
manus injectio, but it was simple
manus injectio, not that applic-
able to quasi judgment creditors :
as the lex (Furia) testamentaria in
the action against the legatee or
donee in contemplation of death
who received more than athousand
asses if not included in certain
classes privileged by that statute ;
and the lex Marcia against usurers
compelled those who exacted in-
terest on a loan to refund by
manus injectio.
§ 24. These statutes and cer-
tain others permitted the defen-
dant to resist arrest and use the
statute-process in his own defence,
for in this case the plaintiff could
not in carrying on the statute-
process add the term quasi judg-
ment debtor, but, after naming
his cause of action, said simply,
'I therefore arrest you'; whereas,
if he proceeded as quasi judg-
ment creditor, after naming the
cause he said, ' Therefore I arrest
you as quasi judgment debtor.'
I am aware that in proceeding
under the lex Furia testamentaria
the plaintiff added the words,
' As quasi judgment debtor,'
though they are not inserted in
the law ; but this seems to have
been done in an irrational way.
iv. §§21-25.] MANVS INIECTIO 465
§ 25. Sed postea lege Vallia, § 25. But subsequently the lex
excepto iudicato et eo pro quo Vallia permitted all defendants
depensum est, ceteris omnibus, sued bY manus injectio, except
cum quibus per manus iniectio- the judgment debtor and the
nem agebatur, permissum est principal indebted to his sponsor,
sibi manum depellere et pro se to resist f7rest a1nd u!e th* s.tatute'
agere. itaque' indicates et is P™cess themselves m their own
,* ,. defence. Hence, the iudgment
pro quo depensum est etiam debtor and the principal indebted
post hanc legem umdicem dare to hig sor for nt (de.
debebawt, et nisi darent, domum pensum) had even after this law
ducebantur. ^ idque quamdm was passed either to give a vindex
legis actiones in usu erant, sem- or else were carried off to the
per ita obseruabatur ; unde creditor's house ; and this practice
nostris temporibus is, cum quo lasted as long as statute-process
iudicati depensiue agitur, iudi- was in force. And thus it is that
catum solui satisdare cogitur. at the present day the defendant in
the actio judicati and in the actio
depensi must give security for the
payment of the sum in which
they may be condemned.
For the proceedings in Manus injectio cf. 3 § 77, comm.
Manus injectio seems to have had two meanings :
(i) Self-help, or redress of the plaintiff by his own act, when the
creditor arrested the debtor privately by his own authority.
In this case the award of a magistrate (addictio) would not be
a necessary preliminary to abduction (secuni duci) : but self-redress
was, as a general remedy, only tolerated when society was very
loosely consolidated ; and abductio without preceding addictio must
at an early period have become, except in particular cases, illegal.
The final blow struck by the state at Self-help was the constitution
of the three emperors, A.D. 389, 3 § 209, comm.
But a creditor was entitled to arrest his debtor of his own accord,
subject to certain formalities, till a comparatively late time in case
of resistance to in jus vocatio ; Si calvitur pedemve struit, manum endo
jacito, Fragment of the Twelve Tables, Tab. 1. 'If the defendant
on being summoned to appear before the magistrate tergiversates or
attempts to flee, the plaintiff may proceed to Manus injectio.'
We may conjecture also that avoidance of in jus vocatio by latita-
tion or keeping house rendered a defendant liable to manus injectio.
Such is the probable explanation of two fragments of the Twelve
Tables, Tab. 1 : Si in jus vocat, ito. Ni it, antestamino, igitur em
capito. . . . Tab. 2, 3 : Cui testimonium defuerit, is tertiis diebus ob
portum obvagulatum ito. ' On a service of summons to appear before
the magistrate, if the defendant refuse obedience, the plaintiff shall
obtain attestation of the fact, and then take him by force. In default
WHITTUCK H h
466 DE ACTIONIBVS [iv.§§ 21-25.
of such attestation (L e. if the defendant avoid service by keeping
out of the way) the plaintiff on three market-days shall stand before
the defendant's door and wawl (loudly summon him to appear (?), and
after this the defendant shall be liable to manus injectio).' Compare
the Hindoo custom of ' sitting dharna,' i. e. fasting at the door of a
debtor. See Maine's Early History of Institutions, pp. 40, 297-298.
(2) Manus injectio ceased to be a mere act of legalized self-redress,
and became the part of a statute-process (legis actio) whenever it took
place before the magistrate, either a Vindex interposing, or, in manus
injectio pura, in case of the alleged debtor becoming himself and not
by means of a vindex defendant in a judicium for determining whether
he was liable to the process, Ihering, 11, c. The vindex (the word
is like vindicatio and vindiciae derived from vim dicere) was in
an analogous position to the assertor libertatis, since a person who
was himself the object of a suit could not himself be defendant in it.
A debtor who was addicted to his creditor did not, however, thereby
lose either his freedom or his citizenship, though incapable while his
confinement lasted of exercising his rights.
The right of a creditor to carry off his debtor under the award
(addictio) of a magistrate, might either be founded on a previous
judgment against the debtor (judicatus), or be given by some special
statute against other debtors who were treated as judgment debtors
(pro judicato). In both these cases the debtor could only defend
himself by a vindex. But in some cases where manus injectio came
to be allowed, as Gaius explains, § 24, the process was made less
harsh, and the defendant was allowed to defend himself without
supplying a vindex (manus injectio pura). It is to be noticed that
Gaius does not refer to the case of the debtor bound in early law by
nexum and subject to manus injectio, cf. 3 §§ 88, 89.
§§ 22-25. The lex Furia de sponsu (3 § 121), (as to the date of this
law and the question whether it is referred to by Cicero see Karlowa,
Rom. Kechtsgesch. 2, 735, and Roby 2, 30, n. 2), limited the obliga-
tion of the sponsor and fidepromissor to two years, and divided it
equally among all the sponsores and fidepromissores without regard
to their solvency.
The word exegisset suggests that the lex Furia de sponsu was not
a lex perfecta ; — that the limitation of the sponsor's liability to a pro-
portionate part of the principal debt was only effected by a penalty
being imposed on the creditor who exacted the whole obligation.
If we assume with Ihering that the lex Furia de sponsu and the
lex Furia testamentaria (2 § 225) were separate clauses of the same
enactment, we can understand why manus injectio pro judicato,
which was expressly made the remedy in lex Furia de sponsu, was
extended by interpretation to lex Furia testamentaria : although this
iv. §§21-25.] MANVS INIECTIO 467
extension, according to Gaius, § 24, violated the rules of statute-
process, which ought to rest in its minutest details on the express
provisions of a statute.
The lex Marcia is an early law of uncertain date, cf. Livy, 7, 21.
Its poena, like that of lex Furia testamentaria, was quadruplum : Cato
de Ee Kustica, quoted by Gellius.
The general opinion now is that execution against an insolvent
debtor in the old Koman law was always directed immediately against
the person of the debtor; it is certain that execution against his
entire property, under the name of Bonorum venditio, 3 § 77, was
a later invention of the Praetor. Savigny, however, supposes that
under the law of the Twelve Tables itself execution against the
person was confined with certain exceptions to. judgments on an
actual loan of money, and that execution on other judgments was
always against the estate : and by this view, he seeks to throw light
on an obscure problem, the nature of the ancient contract of Nexum.
A case, other than a judgment debt, in which the creditor might
proceed by Manus injectio seems to be, besides those mentioned in
the text, Furtum manifestum, 3 § 189.
With liability to Manus injectio for a quasi judgment debt we
may compare the arrest of an absconding debtor in the English law
by a writ of capias ad respondendum. As the Koman debtor had to
find a vindex or responsible representative, so the English debtor
must either remain in custody or put in bail, that is, find sureties
who will undertake that, if judgment is obtained against him, either
he shall surrender into custody, or shall pay the debt and costs
recovered, or that they themselves will pay them for him. The
Koman Vindex apparently became responsible for twice the amount
of the original debt.
§ 25. Bethmann-Hollweg, 2 § 111, conjectures that under the
formulary procedure actio judicati, when the judicium was legitimum
(§ 103), was fictitious, and had a formula like the following: Quod
Numerius Negidius Aulo Agerio sestertium decem milia condemna-
tus est, Si Aulus Agerius Numeric Negidio manus injecisset : turn
quidquid Numerium. Negidium Aulo Agerio dare facere oporteret:
ejus, judex, Numerium Negidium Aulo Agerio duplum condemna.
If the judicium was imperio continens, he supposes that the actio
judicati was in factum with the following formula : Si paret Nume-
rium Negidium Aulo Agerio sestertium decem milia condemnation
esse eamque pecuniam intra legitimum tempus solutam non esse :
quanti ea res erit, tantae pecuniae duplum judex Numerium Negi-
dium Aulo Agerio condemna. (But see in respect of these highly
conjectural formulae Len el's very unfavourable remarks. Das Edictum
Perpetuum, p. 354, &c.) Under the later emperors when the formu-
H h 2
468
DE ACTIONIBVS
[IY. §§ 26-29.
lary procedure was abolished, the actio judicati as a means of execu-
tion was superseded by a more direct process generally in the form
of Pignoris capio. Thirty days were allowed for payment. 3 § 78 ;
then interest began to run at 24 per cent, per annum (duo centesimae
per month) which Justinian reduced to 12 p. c.
§ 26. Per pignoris capionem
lege agebatur de quibusdam
rebus moribus, (de, quibusdam
rebus} lege.
§ 27. Introducta est moribus
rei militaris. nam et propter
stipendium licebat militi ab eo
qui aes tribuebsA, nisi daret,
pignuscapere; dicebatur autem
ea pecunia, quae stipendii
nomine dabatur, aes militare.
item propter earn pecuniam
licebat pignus capere, ex qua
equus emendus erat; quae
pecunia dicebatur aes equestre.
item propter earn pecuniam, ex
qua hordeum equis erat conpar-
andum ; quae pecunia dice-
batur aes hordiarium.
§ 28. Lege autem introducta
est pignoris capio ueluti lege
xn tabularum aduersus eum,
qui hostiam emisset necpretium
redderet ; item aduersus eum,
qui mercedem non redderet pro
eo iumento, quod quis ideo
locasset, ut inde pecuniam ac-
ceptam in dapem, id est in
sacrificium, inpenderet. item
lege censoria data est pignoris
capio publicanis uectigalium
publicorum populi Romani ad-
uersus eos qui aliqua lege uecti-
galia deberent.
§ 29. Ex omnibus autem istis
causis certis uerbis pignus ca-
piebatur, et ob id plerisque
placebat hanc quoque actionem
legis actionem esse ; quibusdam
autem (contra) placebat, pri-
mum quod pignoris capio extra
§ 26. Pignoris capio (distress)
was employed in some cases by
virtue of custom, in others by
statute.
§27. By custom, in obligations
connected with military service ;
for the soldier could distrain upon
his paymaster for his pay, called
aes militare ; for money to buy
a horse, called aes equestre ; and
for money to buy barley for his
horse, called aes hordiarium.
§ 28. By statute as by the
law of the Twelve Tables which
rendered liable to distress on de-
fault of payment the buyer of a
victim and the hirer of a beast of
burden lent to raise money for
a sacrifice to Jupiter dapalis. So
too the law of the Censors gave
the power of distress to the
farmers of the public revenue of
the Roman people (publicani)
against those in default for taxes
(vectigalia) due under any statute.
§ 29. As in all these cases the
distrainor used a set form of
words, the proceeding was gene-
rally considered a form of statute-
process. Some, however, held
otherwise, because it was per-
formed in the absence of the
iv. §§26-29.] PIGNORIS CAPIO 469
ius peragebatur, id est non apud praetor and generally of the
praetor em, plerumque etiam debtor ; whereas the other forms
absents aduersario, cum alio- of statute-process could only be
quin ceteris actionibus non all- enacted in the presence of the
ter uti posseTit quam apud prae- praetor and the adversary ; be-
torem praesente aduersario, sides> ii; coul(J take Place on an
praeterea quod nefasto quoque unlawfu* da7 (dies nefastus) (2
die, id est quo non licebat lege $ 279> that 1S' on a ^ wllen
agere, pignus capi poterat. statute-process was not allowed.
§§ 26-29. Distress in English law bears a certain resemblance to
Execution. Each is the application of constraint to a defendant's will
by seizure of his goods. But making a distress is a legalized act of
self-redress by a private, per son, as of a landlord for securing his rent,
and may take the place of or precede an action: execution follows
after judgment obtained in an action, and is the act of the executive
at the command of the sovereign. The pignoris capio of the older
Koman law corresponded to distress ; the pignoris capio of the
formulary system generally was a mode of execution.
Perhaps pignoris capio, like manus injectio, was itself simply an act
of regulated Self-redress, when there was no other legal remedy
available, and did not amount to legis actio unless it led to a suit
in which the legality of the distraint was brought into question.
Cf. Sohm, § 48, and the literature there cited.
Pignoris capio in the older system of procedure was a remedy
allowed in cases of a public character, that is, in claims relating to
military service, to religion, or to the revenue. In the first case, § 27,
the remedy was established by custom, that is, was anterior to the
Twelve Tables ; in the second case, § 28, it was given by the Twelve
Tables ; in the third case, § 28, it was created by law subsequent to
the Twelve Tables.
We have mention of the aes equestre and hordiarium, § 27, in
Livy's account of the Servian constitution, Livy 1. 43. 'Each
soldier received ten thousand asses for the purchase of a horse, and
for its maintenance a widow was assigned, who was bound to pay
two thousand asses a year.'
The institution appears to have been transplanted from Greece.
Cicero mentions it as in fprce at Corinth, De Republica, 2, 20, 36.
' Tarquinius Priscus instituted the present organization of the
cavalry. At Corinth, whence he came, there was a practice of allot-
ting horses at the public expense and taxing the childless and widows
for their maintenance.' The private persons thus appointed mili-
tary paymasters appear to have been called tribuni aerarii, Gellius 7,
10. In later times soldiers were paid by the Quaestors from the
public treasury.
470
DE ACTIONIBVS
[iv. §§ 30-38.
We have something similar in the Laws of Plato : ire/n 8c . . .
XetTov pyicav, onocra jrepi Ovcrias flprjviKrjs Jj yroXe JJLIKWV d<T(pop£>v (ti>€Ka, irdvriav T£>V
roiovratv TTJV irpcaryv dvdyKrjv larfjv ttvai rf/s facias rots £8e] fj.f] irfidop-fvois fve-
\vpaaiav TOVTOIS, ois &v no\is apa xai vop.os elcrnpdrTfiv TrpocrTdrrrj, T£>V 8e
airfi6o\ivT<i>v rais (Vf^vpacriais irpatrtv rS>v fvf^ypatv etVat, TO 8e v6fjncr\M yiyvf<r6ai
rf) Ti-oAet, Laws, 12, 4. * If a public duty relating to religion or war is
unperformed, the first stage of coercive penalty shall be defeasible by
submission of the defaulter, and his goods shall be merely taken in
distress by the lawfully appointed official ; but if he continue contu-
macious, the distress shall be sold and the proceeds shall be
confiscated.'
§ 28. Eaising money for a sacrifice by letting out a beast of burden
seems to us to be an exceptional circumstance, but in primitive times
it may have been a common practice, originally sanctioned by jus
sacrum. (For the importance of distress in early law, before regular
courts of law were established, and for instances of its exercise, see
Maine's Early History of Institutions, Lect. IX.)
A praediator is defined by Gaius, qui mercatur a populo, above,
2 § 61. A lex praediatoria which might perhaps be passed to
enable things thus taken in distress for taxes to be sold, is mentioned
by Suetonius : Ad eas rei familiaris angustias decidit, ut cum obliga-
tam aerariis fidem liberare non posset, in vacuum lege praediatoria
venalis pependerit sub edicto praefectorum, Claudius 9. ' He was so
impoverished, that he could not discharge his obligation to the
treasury, and the prefects advertised his goods for sale without
reserved price, as provided by lex praediatoria.' On the first day of
a sale the amount of the debt due to the state was announced as a
reserved price, or minimum for which the goods would be sold. If
no bidder appeared on these terms, the goods were offered on a sub-
sequent day without reserve (in vacuum).
§ 30. Sed istae omnes legis
actiones paulatim in odium
uenerunt. namque ex nimia
subtilitate ueterum qui tune
iura condiderunt eo res per-
ducta est, ut uel qui minimum
errasset, liiemi perderet. itaque
per legem Aebutiam et duas
lulias sublatae sunt istae legis
actiones effectumque est, ut per
concepta uerba, id est per formu-
las litigemus.
§31. Tantum ex duabus cau-
sis permissum est lege agere :
§ 30. But all these branches of
statute-process fell gradually into
great discredit because the exces-
sive subtlety of the ancient jurists
made the slightest error fatal ;
and accordingly they were abolish-
ed by the lex Aebutia and the two
leges Juliae, which introduced in
their stead the system of formulas
or written instructions of the
praetor to the judex.
§ 31. Two cases only were re-
served for statute-process, appre-
iv. §§ 30-38.]
DE FICTIONIBVS
471
damni infecti et si centumuirale
iudicium fufamim est. sane
quidem cum ad centumuiros
itur, antelege agitur sacramento
apud praetorem urbamim uel
peregrinum [praetorem]. damni
uero infecti nemo uult lege
agere, sed potius stipulatione
quae in edicto proposita est
obligat aduersarium suum, id-
que et commodius ius et plenius
est. per pignoris capionem 1
(23 uersus in G legi nequeunt)
apparet.
§ 32. Item in ea forma, quae
publicano proponitur , talis fictio
est, ut quanta pecunia olim, si
pignus captum esset, id pignus
is a quo captum erat luere
deberet, tantam pecuniam con-
demnetur.
§ 33. Nulla autem formula
ad condictionis fictionem expri-
mitur. siue enim pecuniam
siue rem aliquam certam debi-
tam nobis petamus, earn ipsam
DARI NOBIS OPORTERE intendi-
mus ; nee ullam adiungimus
condictionis fictionem. itaque
siinul intellegimus eas formulas,
quibus pecuniam aut rem ali-
quam nobis dari oportere in-
tendimus, sua ui ac potestate
ualere. eiusdem naturae sunt
actiones commodati, fiduciae,
negotiorum gestorum et aliae
innumerabiles.
§ 34. Habemus adhuc alterius
generis fictiones in quibusdam
formulis, ueluti cum is, qui ex
edicto bonorum possessionem
petiit, ficto se herede agit. cum
enim praetorio iure,nonlegitimo
succedat in locum defuncti, non
habet directas actiones, et ne-
que id quod defuncti fuit potest
hended damage and centum viral
causes. When there is recourse
to the centumvirs, statute-process
by way of sacramentum either
before the praetor urbanus or
peregrinus, as may happen, is
the preliminary proceeding. For
protection, however, against ap-
prehended damage a plaintiff no
longer resorts to statute-process,
but stipulates to be indemnified
by the defendant in the manner
provided by the edict, whereby he
is put to less trouble and obtains
ampler redress. . . .
§ 32. So the formula provided
for the farmer of the revenue con-
tains a fiction directing that the
debtor be condemned in the sum
for which formerly, if his goods
had been distrained on, he would
have had to ransom the distress.
§ 33. But no formula is moulded
on a fictitious legis actio per con-
dictionem ; for when we sue for
a certain thing or sum of money,
our intentio names the very thing
or sum for which we sue, with-
out any reference to a fiction of
condictio ; so that the present
formulae by which we claim that
a fixed sum of money or that
some particular thing is due to us
are understood to depend on their
own force. Similarly independent
of the elder system are the actions
of loan for use, fiduciary agree-
ment, unauthorized transaction
of another person's affairs, and
innumerable others.
§ 34. Fictions of a different
kind are employed in certain
formulae, as for example when the
bonorum possessor or praetorian
successor sues under a fiction that
he is civil heir. For being only
the praetorian, not the civil heir,
he has no direct action, and can
neither claim in the intentio of
472
DE ACTIONIBVS
[iv. §§ 30-38.
intendere SVVM ~ESSE neque id
quod e\ debebatur potest inten-
dere (DAB!) SIBI OPORTERE ;
itaque ficto se herede intenclit
uelut hoc modo IVDEX ESTO. si
A. | AGERIVS (id est si ipse aotor)
I. TITIO HERES ESSET, TVM <SI
EVMy FVNDFJH" | DE QVO AGITVR
EX IVRE QVIRITIVM EIUS ESSE
OPORTERET ; et 81 — de , |
praeposita simili/iciione heredis
ita subicitur TVM si PABE|RET
N. NEGIDIVM (A.} AGERIO SE-
STERTIVM X MILIA DARE OPOR-
TERE.
§ 35. Similiter et bonorum
enaptor ficto se herede agit ;
sed interdum et alio modo agere
solet. nam ex persona eius
cuius bona emerit sumpta in-
tentione conuertit condemna-
tionem in suam personam, id
est ut, quod illius esset uel illi
dari oporteret, eo nomine ad-
uersarius huic condemnetur ;
quae species actionis appellatur
Kutiliana, quia a praetore P.
Rutilio, qui et bonorum uendi-
tionem introduxisse dicitur,
conparata es£. superior autem
species actionis, qua ficto se
herede bonorum emptor agit,
Seruiana (uocatur.
§ 36. Item usucapio fingi-
tur in ea actione quae Publi-
cianay uocatur. datur autem
haec actio ei qui ex iusta causa
traditam sibi rem nondum usu-
cepit eamque amissapossessione
petit, nam quia non potest earn
EX IVRE QVIRITIVM SVAM ESSE
intendere, fingitur rem usuce-
the formula to be [Quiritary]
owner of the things belonging to
the deceased, nor that the debtor
is bound [by civil law] to pay the
debts due to him. Accordingly,
the intentio feigns him to be
civil heir, and runs as follows:
' Let C D be judex. Supposing
Aulus Agerius (plaintiff) were the
civil heir of Lucius Titius, if in
that supposition it be proved that
the land in question ought to be
his by the law of the Quirites ; '
or, in case of a debt, after a
similar fiction of his being civil
heir the intentio proceeds : ' if in
that supposition it be proved that
Numerius Negidius (defendant)
ought [by civil law] to pay to
Aulus Agerius ten thousand
sesterces : then let the defendant
be condemned,' &c.
§ 35. So the purchaser of a
bankrupt's estate may either feign
himself to be civil heir, or may
use a different form [feigning to
be procurator of the insolvent] :
for he may name the insolvent in
the intentio and himself in the
condemnatio, requiring the de-
fendant to restore or pay to him-
self any property that belonged
or any debt that was due to the
insolvent. This form of action is
called Kutilian, from the praetor
Kutilius, who invented execution
against the entire estate of the
insolvent (bonorum venditio) : the
action wherein the plaintiff feigns
himself civil heir is called Ser-
viana.
§ 36. So there is a fiction of
usucapion in the Publician action,
whereby a man claims a thing
which had been delivered to him
on a valid legal ground which he
has lost possession of before having
acquired ownership of it by usu-
capion. Being unable to claim
it in the intentio as his property
IV. §§ 30-38.]
DE FICTIONIBVS
473
pisse et ita quas-£ ex iure Qui-
ritium dominus factus esset
intendit, ueluti hoc modo IVDEX
ESTO. SI QVEM HOMINEM A.
AGERIVS EMIT (JET) IS El TRA-
DITVS EST, ANNO POSSEDISSET,
TVM SI EVM HOMINEM DE QVO
AGITFB EXIVBE QUIBITIVM EIVS
ESSE OPORTERET et reliqua.
§ 37. Item ciuitas Rom ana
peregrine fingitur, si eo nomine
agat ant cum eo agatur, quo
nomine nostris legibus actio
constituta est, si modo iustum
sit earn actionem etiam ad
peregrinum extendi: ueluti si
furti agat peregrinus aut cum
eo (agatur. nam si cum pere-
grino) agatur, /ormula ita con-
cipitur IVDEX ESTO. si PABET
<£. TITIO OPE} CONSILIOVE
DIONIS 7TERMAEI FILIJ FVRTVM
FACTVM ESSE PATERAE AVREAE,
QVAM OB REM EVM, SI CIVIS
ROMANVS ESSET, PRO FVRE DAM-
NVM DECIDERE OPORTERET et
reliqua. item si peregrinus
furti agat, ciuitas ei Romana
fingitur. similiter si ex lege
Aquilia peregrinus damni in-
iuriae agat aut cum eo agatur,
ficta ciuitate Romana indicium
datur.
§ 38. Praeterea aliquando fin-
gimus adttersariuin nostrum ca-
pite deminuturn non esse. nam
si ex contractu nobis obligatus
obligataue sit et capite deminu-
tus deminutaue fuent, uelut
mulier per coemptionem, mas-
culus per adrogationem, desinit
iure ciuili debere nobis, nee
directo intendi potest sibi dare
by the law of the Quirites, he is
feigned to have acquired it by
usucapion, and thus to have be-
come owner by quiritary right,
and his intentio runs as follows :
'Let C D be judex. Supposing
that the slave who was sold and
delivered to Aulus Agerius had
continued during a year in his
possession, if in that case the slave
would have legally belonged to
Aulus Agerius by the law of the
Quirites, then condemn the de-
fendant,' &c.
§ 37. So an alien is feigned to
be a Roman citizen, if he sue or be
sued in an action which would be
valid as between Roman citizens,
and it is an action which may
justly be extended to aliens. For
instance, if an alien sues or is
sued for theft, in the latter case
the formula runs as follows : 'Let
C D be judex. If it be proved
that Dio son of Hermaeus stole —
or, if it be proved that Dio son of
Hermaeus aided and abetted in
stealing — from Lucius Titius a
golden cup, for which, if he had
been a Roman citizen, he would
have had to make composition for
theft, then condemn Dio son of
Hermaeus,' &c. So if an alien
sue for theft or sue or be sued
under the Aquilian lawfor damage
to property, he is feigned to be a
Roman citizen.
§ 38. Again, we may feign that
the defendant has not undergone
a capitis deminutio : for if we
make a contract with a person
who afterwards undergoes a
capitis deminutio, as an (indepen-
dent) female by her coemption,
or an independent male by his
adrogation, he or she ceases by
the civil law to be our debtor, and
474 DE ACTIONIBVS [iv.§§ 30-38.
eum eamue oportere ; sed ne in we cannot directly declare in the
potestate ems sit ius nostrum intentio that he or she is bound
corrumpere, introducta est con- to convey something to us. To
tra eum eamue actio utilis re- protect our rights, however, from
scissa capitis deminutione, id extinction by the act of another,
est in qua fmgitur capite de- the Praetor grants a fictitious
minutus deminutaue non esse. Action rescinding or ignoring the
deiendant s capitis demmutio, i. e.
supposing by a fiction that the
debtor had not undergone it.
§ 30. The lex Aebutia, of uncertain date, was probably passed not
long after the middle of the second century B. c. The leges Juliae
are supposed to be leges judiciariae passed by Augustus. What were
the respective shares of these different enactments in bringing about
the important change of procedure Gaius mentions must remain
uncertain. After the legis actiones were abolished as modes of pro-
ceeding in civil suits their forms still survived in the ceremonies of
adoption, the manumission of a slave, the emancipation of a son,
and conveyance by in jure cessio.
It may be questioned whether Gaius has exactly laid his finger
on the deficiency of the system of Statute-process when he alleges
its excessive formalism or subtlety (nimia subtilitas) as the cause of
its failure. Its shortcoming was not so much its formalism (the
following system was equally formalistic) as (i) its want of safe-
guards against errors of form and (2) its want of power of expansion.
(1) Though the Formula was perhaps as literally and rigorously
interpreted as the form of Statute-process, yet the period at which
the Formula was fixed in the Formulary system diminished the
danger of the defeat of a righful claim by an error in the selection
of the appropriate form. The formula of an action was not de-
termined till the close of a debate before the magistrate (in jure) in
which both parties were assisted by jurists and had disclosed, in
part at least, their pretensions, and brought the true issue to light.
Statute-process was formal at an earlier stage and from the inception
of the proceedings : and the kinds of statute-process were specially
characterized and denominated by their first stages even when these
were extra-judicial or outside the court, as in manus injectio and
pignoris capio. In Statute-process an error of form at any of the
stages preceding litis contestatio was fatal to the party by whom it
was committed. In the Formulary system no litigant could commit
a suicidal error — no form was fixed whereby his claim could be
defeated — before the litis contestatio.
(2) A plaintiff had no remedy unless he could show that his cas
had been contemplated by the legislator : but the legislator had beei
too much occupied with foreign war and domestic dissension to thii
iv. §§30-38.] DE FICTIONIBVS 475
of developing the private code. Jurisprudence had been busy in
framing such actions as the system admitted ; but jurisprudence had
little voice and little scope. If the law was silent, if there was any
hiatus or casus omissus, jurisprudence was not allowed to fill up the
void. The praetor himself had his hands tied and was a mere piece
of machinery. The institution of the Formulary process gave an
organ to the voice of jurisprudence, and the power of issuing edicts
and inventing new forms of action constituted the praetor, in fact
though not in name, a second legislator. The enlarged scope given to
the conscience of jurisprudence by the new powers of the praetor
produced an enlargement of the scheme of remedies such as followed
in England from the recognition of the royal conscience as a source of
civil legislation and the erection, beside and in addition to the common
law courts, of a court of Chancery presided over by the guardian of
the conscience of the king. Ihering, § 47 ; cf. Sohm, § 49.
Conceptae feriae denoted holidays specially appointed by the
magistrate, as opposed to feriae stativae : so concepta verba seems
to denote the formulae accommodated by the magistrate to the
various grounds of litigation, as opposed to the certa verba, § 29,
or more immutable formulae prescribed to the litigants in Statute-
process by the legislator. The term, then, expresses elasticity. Cf.
Koby, 2, p. 347, n. 2.
We may observe by anticipation that the Formulary system, after
an existence of nearly five hundred years, was brought by the
ingenuity of lawyers into the same discredit and experienced the
same fate as the system it had displaced. First Diocletian, A. D. 294,
required provincial governors as a rule to hear and determine all
causes themselves, instead of commissioning official judices to hear
and determine them, Cod. 3, 3, 2 ; cf. Cod. 3, 3, 5. 'Governors of
provinces shall themselves determine the causes which they have
been in the habit of referring to inferior (pedaneos) judges, unless
prevented from doing so by pressure of business or the excessive
number of causes.' Pedaneus judex signifies in this passage not the
ordinary judex of the Formulary system, who acted with an in-
dependent authority, but a subordinate official to whom the governor
delegated his extraordinaria cognitio for trying cases. From the time
of Diocletian it was the ordinary practice that the magistrate should
not send the case to a private judex to be tried under a formula, but
should judge in person by virtue of his extraordinary authority,
though under certain circumstances he could, as we see by the above
passage, appoint an official called judex pedaneus as his substitute.
Thus cognitio extraordinaria, which in earlier times was only
employed occasionally in exceptional cases, had become the rule.
Afterwards the emperors Constantius and Constans, A.D. 342, en-
476 DE ACTIONIBVS [iv. §§ 30-38.
tirely abolished formulae. Juris formulae, aucupatione syllabarum
insidiantes, cunctorum actibus radicitus amputentur, Cod. 2, 57, 1.
' Legal formulae, with their syllabic snares and pitfalls, are hereby
abolished in eveiy procedure.'
§ 31. The proceeding under the edict in Damni infecti was as
follows : If A apprehended damage to his property from the down-
fall of a dilapidated house (aedes vitiosae, ruinosae) belonging to B,
he might apply (postulare) to the praetor and, having affirmed his
case on oath, obtain an order that B should promise, with or without
sureties according to circumstances, to indemnify A in the event of
the accident. If B refused to promise, the praetor by a first decree
put A in possession, that is, gave him detention or custody of B's
house. If B still refused, the praetor by a second decree gave A
bonitary ownership, which time would convert by usucapion into
quiritary ownership. This remedy, imposing the necessity of in-
demnifying or surrendering the cause of damage, was an imitation of
noxal actions, which compelled the father of a son or owner of a
slave or of a beast that had injured a neighbour's property either to
make compensation or to surrender the author of the damage. (For
a detailed account of this proceeding, see Roby, Bk. 4, ch. 8.)
The proceeding darnni infecti nomine by statute-process, from its
similarity to the proceeding in aquae pluviae arcendae, may be in-
ferred to have been a form of judicis postulatio.
§ 32. In English law there is a similar reference to an obsolete
institution in the case of debtors to the sovereign. By 33 Hen. 8,
c. 39, and 13 Eliz. c. 4, persons indebted to the Crown are to incur
in certain cases the same liability as if they were bound in a Statute
Staple, a form of solemn contract now disused.
§§ 33, 34. Gaius appears to have divided Fictions into two classes,
those which made a reference from the formulary system to the
older system of procedure, and those which made a reference from
rights protected by the praetor to rights recognized by the civil law.
The former class were not an extension of the law, but only pre-
served to a plaintiff the remedies which he otherwise would have
lost by the change of procedure when statute-process was abolished.
For instance, the fiction of Pignoris capio was employed to preserve
unimpaired the rights of the revenue contractor and as a measure for
assessing the damages to which he was entitled against a defaulter.
We see by the statement made in § 33 about condictio, that a fiction
was not required in all cases for the purpose of transferring an action
from the old procedure to the new. But no information has come
down to us as to the precise way in which this class of fiction was
employed. Cf. Keller, § 18 n., 247 a, and § 25 n., 298.
The second class of fictions was an extension or reform of the law.
iv. §§30-38.] DE FICTIONIBVS 477
protecting persons whose rights had previously not been recognized,
or mitigating the rigours and liberalizing the narrow-mindedness of
the ancient barbarous legislation : granting to the bonitary owner by
inheritance or purchase the protection enjoyed by the quiritary owner ;
giving to the alien the redress provided for the citizen, and preserving
to the creditor the remedies extinguished by the debtor's diminution
of status. In their task of ameliorating the law the praetors proceeded
as unobtrusively as possible, by tacit rather than by open legislation,
and rather by innovations in the adjective code, to use Bentham's
expression, or code of procedure, than in the substantive code. The
introduction of the formulary system, giving them authority to
create new actions, had virtually invested them with much legislative
power. The new actions introduced by the praetor were called
actiones utiles. Utiles actiones were either ficticiae or in factum,
or constituted by a change of parties in the intentio and condem-
natio of the formula, e. g. actiones adjecticiae qualitatis, §§ 69-74 a ;
cf. 3 § 219, comm. Let us examine these three different forms
of praetorian action in respect of the mode of their operation. The
praetor proceeded in two ways, (i) with or (2) without the use of
fiction.
(i) When he granted a fictitious action, that is, one whose
formula was framed in exactly the same way as that of a civil
action, except that a fictio was added to it, the fiction furnished
an exact measure of the extent to which the old law had been
abandoned. The praetor might in this way suppress some element
of the title to which the remedy at civil law was annexed ; and
make the same consequences follow as if this element had existed.
The fiction would be the false assumption that the plaintiff's case
satisfied the abrogated condition. By ruling that the fictitious
proposition should not be called in question, and that the defendant
should not be allowed to demur to the plaintiff's claim on the ground
that the conditions required for maintaining it were unsatisfied, the
praetor would virtually abrogate the old law, and substitute for it
a new one. In the cases given by Gaius the conditions which are
assumed relate to inheritance, usucapion, citizenship, capitis deminutio.
They might conceivably relate to any other institution of civil law.
In the Actio Pauliana protecting creditors against fraudulent aliena-
tions, the fiction was an assumption of non-delivery — the formula
being something like this : Si quern hominem L. Titius in hoc anno
fraudationis causa Numerio Negidio, qui earn fraudem non ignoravit,
mancipio dedit, L. Titius Numerio Negidio mancipio non dedisset,
turn si pareret eum hominem de quo agitur ex jure Quiritium
L. Titii esse, si ea res arbitrio tuo non restituetur, &c., Lenel, p. 353.
Eestitutio in integrum of a minor might assume the form of a
478 DE ACTIONIBVS fiv.SS 30-38.
L « «
fictitious action which treated the rescinded act as unperformed
(rescissa alienatione).
(2) A utilis actio, e.g. the formula Eutiliana, § 35, sometimes
depended on a variance in the parts of a formula, the true plaintiff
or defendant first appearing in the condemnatio after another
person had been named in the intentio. The formula is thus
shaped when one of the parties to an action is a procurator,
§§ 86, 87 ; but the later utilis actio on account of the cession or
assignment of an obligation, when there was no mandatum agendi,
may perhaps be fictitious. The actiones adjecticiae qualitatis were
also instituted by means of this kind of variance in the parts of the
formula.
(3) Without expressly referring in any way to jus civile, or
avowedly introducing a new principle of substantive law, he created
new rights by directing that the defendant should be condemned if
the judex found that the facts asserted by the plaintiff in the intentio
were made out. He did so in granting an actio in factum, one of
his most potent instruments, that is, an actio whose intentio in
factum concepta, of the form, Si paret . . . fecisse, factum esse, e. g.
actio doli — Si paret doli mali Numerii Negidii factum esse, ut Aulus
Agerius Numeric Negidio fundum de quo agitur mancipio daret, &c.,
or actio quasi-Serviana — Si paret inter Aulum Agerium et L. Titium
convenisse, ut ea res, de qua agitur Aulo Agerio pignori hypothe-
caeve esset propter pecuniam debitam, &c. ; for thus he tacitly intro-f
duced or converted a rule of equity or public opinion into a principle
of substantive law, without any fiction or reference to previous rules.
Utilis actio in factum, Dig. 11, 7, 7, 1, was an action that really
had an affinity or analogy to some actio directa, but did not in its
formula accentuate this affinity by means of any Fictio, e.g. actio
Depositi, § 47.
Of the above forms of actio utilis the actio ficticia was probably
the first to be established, and the actio in factum concepta the
most recent.
§ 35. The purchaser of a bankrupt's estate (bonorum emptor),
unlike the purchaser at a sectio bonorum, or sale sub hasta of the
confiscated goods of an enemy or a criminal, only had a title to
the property under the praetor's edict and not by civil law. Hence
to protect his rights the praetor allowed him to sue by actio ficticia
either by resort to the fiction that he was heres, or by a variance
of the parts of the formula (convertit condemnationem in suam
personam), and he was liable to corresponding actions. Cf. 3,
§§ 77-81, comm.
The praetor Publius Kutilius is probably the P. Kutilius who was
consul in 105 B. c. The formula which he introduced for the
iv. §§30-38.] DE PARTIBVS FOEMVLARVM 479
bonorum emptor was the same as that used in other cases where
one person sued or was sued in the name of another, § 86.
The actio Serviana here mentioned was perhaps the action brought
by the bonorum emptor when he had bought the estate of a deceased
debtor and so was not the same action as the actio Serviana whereby
a person letting his land on hire could recover the goods of a colonus
which had been pledged as a security for the payment of rent,
Inst. 4, 6, 7.
§ 36. The date of the important praetorian action called actio
Publiciana, after the praetor who introduced it (Inst. 4, 6, 4), is
uncertain. A Quintus Publicius is mentioned by Cicero, pro
Cluentio, 45, as praetor in B. c. 66 or shortly before. The actio
Publiciana (vindicatio utilis) was, as we have seen, 2 §§ 40-61,
comm., used by a person holding the position of an owner whether
as bona fide possessor or as having a bonitary title for the purpose
of obtaining or recovering possession. But the action might also be
available on account of its convenience to an owner ex jure Quiritium
who wished to be relieved of the necessity of proving his title. The
plaintiff had to prove that he acquired possession in consequence of
some disposition (titulus, causa) such as emptio. His acquisition had
to be accompanied like Usucapio by bona fides, i. e. a belief that the
alienor had a power to aliene ; but as the proof of bona fides is im-
possible, whereas the proof of mala fides is often easy, bona fides was
presumed ; i. e. the burden of the proof of mala fides was thrown on
the defendant. If the plaintiff proved his intentio the defendant
would still prevail if he could show that he was himself owner
(exceptio dominii), or that he had obtained usucapion possession
from some third party (a diverse auctore), or that having obtained
usucapion possession from the same person as the plaintiff had
acquired from (ab eodem auctore), his acquisition was prior in point
of time. In these cases Publiciana wore the air of a duplex
judicium. Savigny, Obligationsrecht, § 67. For an account of the
actio Publiciana, when maintained by (i) a bonitary owner, (2) a
bona fide possessor, see 2 §§ 40-61, comm.
The form of the actio Publiciana that we have considered proceeds
on the supposition of the accomplishment of a non-accomplished
usucapio. Some writers, misled by Dig. 44, 7, 35, pr., have
imagined the existence of another form of Publiciana, which they
call contraria Publiciana or Publiciana rescissoria, proceeding on the
supposition that an accomplished usucapio had not been accom-
plished. But Savigny has shown, § 329, that this is erroneous : that
when usucapion is rescinded by in integrum restitutio on account
of Absence, the action whereby the plaintiff recovers his property
may be, according to circumstances, either an ordinaiy Publiciana
480
DE ACTIONIBVS
[iv. §§ 39-44
or an ordinary Vindicatio, Inst. 4, 6, 5 : that the rescission of
usucapio, in other words, does not give birth, as supposed, to any
new form of action.
§ 38. By a positive rule, of which we are unable to give the
rationale [1 §§ 159-164, comm.], the change of status produced by
coemptio and adrogatio extinguished the debts of the wife or
adrogatus, and the husband or adrogator acquired by manus and
patria potestas their rights without their liabilities. To meet this
the praetor gave the creditor an actio rescissoria which was ficticia :
Ait praetor : qui quaeve, posteaquam quid cum his actum con-
tractumve sit, capite deminuti deminutaeve esse dicentur, in eos
easve quasi id factum non sit judicium dabo, Dig. 4, 5, 2. If the
action was not defended by the husband or adrogator, the praetor
gave the creditor missio in possessionem and power of sale against
all the property of the wife or adrogatus, 3 § 84.
§ 39. Partes autem formula-
rum hae sunt : demonstratio
intentio adiudicatio condem-
natio.
§ 40. Demonstratio | est ea
pars formulae quae — , ut de-
mow|stretur res de qua agitur :
uelut haec pars formulae QVOD
A. AGEEIVS N. NEGIDIO HOMINEM
VENDIDIT; item haec QVOD A.
AGERIVS {APVD} N. NEGIDIVM
HOMINEM DEPOSVIT.
§ 41. Intentio est ea pars
formulae, qua actor desiderium
suum concludit: uelut haec pars
formulae si PARET N. NEGIDIVM
A. AGERIO SESTERTIVM X MILIA
DARE OPORTERE ; item haec
QVIDQVID PARET N. NEGIDIVM
A. AGERIO DARE FACERE (OPOR-
TERE) ; item haec si PARET
HOMINEJf EX IVRE QVIRITIVM A.
AGERII ESSE.
§ 42. Adiudicatio est ea pars
formulae, qua permittitur iudici
rem alicui ex Jitigatoribus ad-
iudicare : ue]ut si inter co-
§ 39. The formula is composed
of the Demonstratio, the In-
tentio, the Adjudicatio, the Con-
demnatio.
§ 40. The principal function of
the part of the formula called
Demonstratio is to indicate the
subject-matter of dispute, [the
cause of action, the title of the
plaintiffs right, the origin of his
claim], as in the following ex-
ample : ' Whereas Aulus Agerius
sold a slave to Numerius Negi-
dius,' or, 'Whereas Aulus Agerius
deposited a slave in the hands of
Numerius Negidius.'
§ 41. The Intentio is that part
of the formula which expresses the
claim of the plaintiff, thus: 'If it
be proved that Numerius Negidius
ought to convey ten thousand ses-
terces to Aulus Agerius ;' or thus :
'Whatever it be proved that
Numerius Negidius ought to con-
vey or render to Aulus Agerius ; '
or thus : ' If it be proved that the
slave in question belongs to Aulus
Agerius by the law of the Quirites.'
§ 42. The Adjudicatio is that
part of the formula which em-
powers the judex to transfer the
ownership of a thing to one of
iv. §§39-44.] DE PARTIBVS FORMVLARVM
481
heredes familiae erciscundae
agatur, aut inter socios com-
muni diuidundo, aut inter ui-
cinos finium regundorum. nam
illic ita est QVANTFM ADIVDI-
CARI OPORTET, IVDEX TITIO
ADIVDICATO.
§ 43. Condemnatio est ea pars
formulae, qua iudici condem-
nandi absoluendiue potestas
pernrittitur : uelut haec pars
formulae IVDEX N. NEGIDIVM
A. AGERIO SE8TERTIVM X MILIA
CONDEMNA. SI NON PARET,
ABSOLVE ; item haec IVDEX N.
NEGIDIVM A. AGERIO DVMTAXAT
(X MILIA} CONDEMNA. SI NOJV
PARET, ABSOLVITO; item haec
IVDEX N. NEQIDIVM A. AGERIO
CONDEMNATO et reliqua, ut non
adiciatur DVMTAXAT (x MILIA}.
§ 44. Non tamen istae omnes
partes simul inueniuntur, sed
quaedam inueniuntur, quaedam
non inueniuntur. certe in-
tentio aliquando sola inuenititr,
sicut in praeiudicialibus formu-
lis, qualis est qua quaeritur,
aliquis libertus sit uel quanta
dos sit et aliae co^plures. de-
inonstratio autem et adiudicatio
et condemnatio nrnnquam solae
inueniuntur. nihil enim omnino
(demonstratioy sine intentione
uel condemnatione ualet ; item
condemnatio sine demonstra-
tione uel intentione, uel adiu-
dica(£io sine demonstratione
uel inten}tione nullas uires
habet, {et} ob id numquam
solae inueniuntur.
the litigants, and occurs in the
actions for partitioning an in-
heritance between co-heirs, for
dividing common property be-
tween co-partners, and for deter-
mining boundaries between neigh-
bouring landholders. In these the
praetor says : ' The portion of the
property that ought to be trans-
ferred to Titius, do thou, judex,
by thy award transfer to him.'
§ 43. The Condemnatio is that
part of the formula which em-
powers the judex to condemn or
absolve the defendant, thus : ' Do
thou, judex, condemn Numerius
Negidius to pay to Aulus Agerius
ten thousand sesterces ; if it be
not proved, declare him to be ab-
solved;' or thus: 'Do thou, judex,
condemn Numerius Negidius to
pay to Aulus Agerius a sum not
exceeding ten thousand sesterces ;
if the case be not proved, declare
him to be absolved ;' or thus : 'Do
thou, judex, condemn Numerius
Negidius to pay to Aulus Agerius, '
et cetera, without inserting any
maximum limit as, e. g., of not
more than ten thousand sesterces.
§ 44. These parts are not con-
current, but where some are
present others are absent. Some-
times the Intentio is found alone,
as in the prejudicial formula to
decide whether a man is a freed-
man, or to ascertain the amount
of a dower, or to settle other
preliminary inquiries. But the
Demonstratio, Adjudicatio. and
Condemnatio are never found
alone, for the Demonstratio is
inoperative without an Intentio
and Condemnatio, and the Con-
demnatio and Adjudicatio are
inoperative without a Demon-
stratio or an Intentio.
Ii
482 DE ACTIONIBVS [iv. §§ 39-44.
§ 39. Besides the four parts mentioned by Gaius the formula
always contained a nomination of a judex, and sometimes an ex-
ceptio, praescriptio, or arbitrium, accessory parts which will be
presently explained.
§ 40. The demonstratio seems not to have occurred in real actions
nor in personal actions in factum, but in personal actions in jus,
whether founded on contract or on delict, where the intentio was
incerta res — quidquid paret dare facere oportere — but not where
the intentio was certa, as in the condictio certi. It was introduced
in order to form a basis for aestimatio, whenever an intentio
incerta left the quantum of the condemnatio to be determined
by the judex. In actio in rem Publiciana, § 36, and Condictio
certi, § 55, the causa is introduced, not in Demonstratio, but as
a part of the Intentio.
If the contract had a technical name (e. g. depositum, venditio)
the demonstratio contained the name (deposuit, vendidit) : if the
contract was nameless, it was described in the praescriptio, which
was a substitute for the demonstratio, by a circumlocution, and this
kind of process was called agere or at a later time actio praescriptis
verbis, 3 §§ 90, 91, comm. That a demonstratio was found in actions
ex maleficio appears from Gaius, below, § 60, and from Paulus, as
quoted in Collatio, 2, 6. Sicut formula posita est : Quod Aulo Agerio
a Numeric Negidio pugno mala percussa est : Illud non cogitur dicere,
dextra an sinistra, nee qua manu percussa sit. Item si dicat infamatum
se esse, debet adjicere quemadmodum infamatus sit. Sic enim et
formula concepta est : Quod Numerius Negidius sibilum inmisit Aulo
Agerio infamandi causa. 'As the formula is worded: Whereas Aulua
Agerius was struck on the cheek by the fist : the plaintiff is not
compelled to declare whether he was struck on the right or left
cheek, or whether with the right or left hand. And if he sue for
defamation, he must allege the means, for so the formula is framed :
Whereas Numerius Negidius hissed Aulus Agerius with the purpose
of defamation.'
The absence of a demonstratio in the formula of condictio certi
may be inferred from the example given by Gaius, § 86, and from
the assertion of Cicero, pro Eoscio Comoedo, 4, that it did not
appear whether Fannius, who sued Eoscius by condictio certi,
founded his claim on mutui datio, expensilatio, or stipulatio. He
could hardly have asserted this, if the title on which Fannius sued
had been expressed in a demonstratio. On the other hand, we have
a praescriptio corresponding to a demonstratio in the actio ex stipu-
latu for an uncertain amount, §§ 136, 137. It is obvious that if
a man sues for an indeterminate sum of money he ought to give
the defendant some further information of the cause of action ; bi
IV. §§39-44.] DE PARTIBVS FORMVLARVM 483
if he sues for a determinate sum or a definite thing, the defendant
can scarcely be ignorant of the cause of action on which the plaintiff
relies.
§ 42. The adjudicatio was only found in the three actions familiae
erciscundae, communi dividundo, and finium regundorum. It was
not a declaration of existing rights of property, but a partition of
property by a judex between the litigants. Adjudicatione dominium
nanciscimur . . . nam si judex uni ex heredibus aut sociis aut vicinis
rem aliquam adjudicaverit, statim illi adquiritur sive mancipi sive nee
mancipi sit, Ulpian, 19, 16. 'Adjudication is a means of acquiring
dominion, for the heir, partner, or neighbouring landowner, to whom a
thingis adjudicated by the judex, forthwith acquires ownership therein,
whether it is mancipable or not mancipable.' In quibus tribus judiciis
permittitur judici, rem alicui ex litigatoribus ex bono et aequo ad-
judicare, et, si unius pars praegravare videbitur, eum invicem certa
pecunia alteri condemnare, Inst. 4, 6, 20. ' In these three actions the
judge has the power to assign a thing in accordance with fair-dealing
and equity to one of the litigants, and, if this one obtains more than
his share, to condemn him to make pecuniary compensation to the
other.'
§ 43. Taxatio [signified by the word ' dumtaxat '] was a limitation
to the condemnatio, §§ 51, 52 ; cf. 3 § 224. Besides the kind noticed
here by Gaius, there were several others. If a paterfamilias was
sued for the debt of a person in his power whom he had authorized
to trade, the condemnation was limited to the amount of the
peculium (quatenus in peculio sit) ; if the slave or son had traded
without authority, it was limited to the amount of profit the father
or master had thereby received (quatenus in rem ejus versum sit),
§§ 72, 73 ; if the heir of a wrongdoer was sued, it was limited
to the amount that he gained from the wrong or fraud by his
succession (dumtaxat in id quod ad eum pervenit quanto locupletior
factus est).
Again, in an analogous way, some debtors enjoyed a privilege that
is called Beneficium competentiae : the privilege of not being con-
demned to pay the whole amount of their debt but only such an
amount as will leave them the means of subsistence (condemnatio
in tantum quantum facere potest. Cf. Inst. 4, 6, 37, 38). A soldier
sued by any creditors ; a debtor who has made cessio bonorum,
sued by his original creditors in respect of after-acquired property,
Inst. 4, 6, 40 ; cf. 3 §§ 77-81, comm. ; a person sued on becoming a
paterfamilias, but without inheriting much property, by a creditor
in an obligation other than a delictal one, incurred when he was
a filiusfamilias, Dig. 14, 5, 2-7 ; an ascendant sued by a descendant,
Inst. 4, 6, 38 ; a husband sued by a wife or a wife by a husband
I i 2
484 DE ACTIONIBVS [iv. §§ 39-44.
before or after divorce for a debt incurred during marriage ; a father-
in-law sued by a son-in-law for a promised dower ; a donor sued by
a donee ; a partner sued by a partner, Inst. 4, 6, 38 ; were only
liable to be condemned in such a sum as would leave them the
necessaries of life. The privilege was enforced by Exceptio,
Dig, 44, 1, 22. It was forfeited by dolus and did not apply to
liabilities arising from delict. If such a privileged debtor was con-
demned in the whole amount of his fortune he could claim to
have a deduction for his means of subsistence made in the levy of
execution.
The obligation of the privileged debtor, however, was not extin-
guished until his creditor had received full satisfaction, and any
after-acquired property of the debtor was liable to the claims of the
creditor. Accordingly, at the period when Ees judicata operated
either ipso jure or ope exceptionis to extinguish all rights of action
arising from the same ground, 3 § 180, it was necessary, in order to
preserve the creditor's right of subsequent action for the residue, that
the judge, as a condition of allowing the Beneficium competentiae,
should compel the debtor to enter into a stipulation on which a
subsequent suit could be grounded. At a later period, when Ees
judicata had lost its power of necessary Novation, it was no longer
requisite to exact this cautio from the debtor before he was allowed
to enjoy the Beneficium competentiae. Vangerow, § 1 74.
§ 44. A praejudicium is mentioned, 3 § 123, to tiy whether a
creditor had openly declared to the sureties the amount of the debt
and number of sureties ; on which facts would depend the several
liabilities of each surety.
When Manus had fallen into desuetude, Dos, the contribution by
or on behalf of the wife to the expenses of matrimony, became during
the subsistence of the marriage tie the property of the husband,
2 § 63, but might have to be restored at its termination. The law,
however, by a partial EXTINCTION of the dower, allowed him to
retain whatever necessary outlay he had made for its maintenance :
Impensae necessariae dotem ipso jure minuunt, Dig. 23, 2, 61. Of.
§ 102, comm. If, now, we assume with Ihering that there was
a period when every action was required to have an intentio certa,
§ 50, we can understand the necessity of a praejudicium to ascertain
quanta dos sit. For when the divorced wife sued for restitution
of her dower, having no means of knowing the amount of her
husband's outlay upon it or what portion of his outlay was neces-
sary to its maintenance, she would certainly have incurred the
penalties of plus petitio, § 53, if she was not allowed to ascertain by
a preliminary issue the amount of the dower after deduction of the
necessary outlay. See §§ 115, 137, comm.
iv. §§ 39-44.] DE PARTIBVS FORMVLARVM 485
So when by the lex Falcidia all legacies were proportionally abated
until a fourth remained to the heir, it was necessary, in order to
enable the legatee to avoid plus petitio, to allow him to ascertain
the amount of the inheritance by a preliminary inquiry: Cum
dicitur lex Falcidia locum habere, arbiter dari solet ad ineundam
quantitatem bonorum, Dig. 35, 3, 1, 6. 'When Falcidia is alleged
to be applicable, an arbiter is appointed to ascertain the amount of
the inheritance.'
Could a formula consist solely of a Demonstratio and a Con-
demnatio ? Yes, if Savigny is right in supposing, § 312, that the
Praetor sometimes granted a formula of the following shape :
Quod Aulus Agerius juravit, Numerium Negidium fundum Cor-
nelianum ipsi dare oportere, quanti is fundus est, eum condemna.
' Whereas the plaintiff has sworn that the defendant owes him such
and such a thing, do thou, judex, condemn the defendant to pay
him its value.'
To explain this we must notice a peculiar use of the oath (jus-
jurandum) in Koman litigation.
The Teutonic tribes, including our ancestors, allowed a defendant
to purge himself by his own oath supported by the oath of a certain
number of his neighbours ; of which institution we have a vestige
in the Wager of law, which was recently an incident of the action
of Detinue, in which the defendant might clear himself by his own
oath and that of eleven compurgators. With such principles of
evidence it is not surprising that in the German forests the struggle
between litigants was not, who should escape the burden of proof but,
who should enjoy the privilege of proof. The Roman method was
not so liable to abuse. Either litigant might tender (deferre, delatio)
an oath to his adversary, i. e. offer to be concluded by his adversary's
oath, on an issue either of fact or of law (as to the existence of
obligation, ownership, succession, &c.). The oath was then equivalent
to a judgment in favour of the person by whom it was sworn, Inst.
4, 13, 4. If a litigant was prepared to take an oath his adversary
might release him from actually swearing (dare, praestare jusjuran-
dum) ; but this release (remittere, remissio) was equivalent to an actual
oath. Instead of taking a tendered oath, the adversary might make
a counter-tender (referre, relatio), i. e. submit the issue to the oath
of the original tenderer. To decline either to swear or to make
a counter-tender was equivalent to a confession of the party who
declined, or to an oath of the party who tendered. From this
necessity imposed on the party to whom it was tendered, the oath
was called jusjurandum necessarium, Dig. 12, 2, 34, 6. If now on
a tender or counter-tender by a defendant a plaintiff swore to the
justice of his claim, the assessment of damages (rei aestimatio)
486
DE ACTIONIBVS
[iv. §§ 45-52.
would still remain as a question for the judex, and the praetor
might, according to Savigny, give him a formula consisting, as above,
of a Demonstratio and a Condemnatio. (But see Lenel, § 54.)
Similarly in case of a Confessio in jure, where anything but
pecunia certa was admitted to be due, a litis aestimatio would be
necessary, of which the formula as constructed by Savigny would
be : Quod Numerius Negidius in jure confessus est, fundum ilium
Aulo Agerio se dare oportere, Quanti is fundus est, judex, Nume-
riurn Negidium Aulo Agerio condemna : si non paret absolve.
Savigny, § 303 ; Keller, § 63.
§ 45. Sed eas quidem formu-
las, in quibus de iure quaeritur,
in ius conceptas uocamus, quales
sunt, quibus intendimus NOS-
TRVM ESSE ALIQVID EX IVEE
QUIRITIVM &ut NOBIS DARI
OPORTERE aut PRO FVRE DAM-
NVM (DECIDI OPOBTEEE ; sunt
et aliae,iny quibus iurisciuilis
intentio est.
§ 46. Ceteras uero in factum
conceptas uocamus, id est in
quibus nulla talis intentio con-
cepta est, (seel} initio formulae
nominate eo quod factum est
adicimitur ea uerba, per quae
iudici damnandi absoluendiue
potestas datur: qualis est formu-
la, qua utitur patromts contra
libertum, qui eum contra edi-
ctum praetoris in ius uocauit ;
nam in ea ita est RECVPERA-
TORES SVNTO. SI PARET ILLVM
PATRONVM AB ILLO LIBERTO
CONTRA EDICTVM ILLIVS PRAE-
TORIS IN IVS VOCATVM ESSE,
REGVPERATORES ILLVM LIBER-
TVM ILLI PATRONO SESTERTIVM
X MILIA CONDEMNATE. SI NON
PARET, ABSOLVIT.E. ceterae quo-
que formulae, quae sub titulo
DE IN ivs VOCANDO propositae
sunt, in factum conceptae sunt,
uelut aduersus eum, qui in ius
uocatus neque uenerit neque
§ 45. Those formulae are said
to be framed in jus, which raise
a question of right ; when, for
instance, we claim in the inten-
tio of the formula that the thing
is ours by the law of the Quirites,
or claim in it that the defendant
is bound to convey something to
us or to make composition to us
as a thief ; for in such formulae
the intentio is one of civil law.
§ 46. But other formulae, on
the contrary, are said to be in
factum when they are not drawn
up with an intentio of the above
kind ; but, after proposing a
question of fact in the intentio,
proceed at once to the Condem-
natio and Absolutio ; as in a for-
mula used by a patron when
suing his freedman for summon-
ing him before the magistrate in
contravention of the edict. The
formula then runs thus : ' Let
M N be recuperators. If it be
proved that such and such a
patron was summoned to appear
by such and such a freedman
against the edict of such and
such a praetor, do you, recupera-
tors, condemn the said freedman
to pay to the said patron ten
thousand sesterces ; if it be not
proved, declare him to be ab-
solved.' The other formulae, which
are set out in the title of the
edict about summoning before
iv. §§45-52.] CONCEPTIO FORMVLARVM
uindicem dederit ; item contra
eum, qui ui exemerit eum qui
in ius uocatur ; et denique in-
numerabiles eius modi aliae
formulae in albo proponuntur.
§47. Sedexquibusdam causis
praetor et in ius et in factum
conceptas formulas proponit,
uehtti depositi et coinmodati.
ilia enim formula, quae ita
concepta est IVDEX ESTO. QVOD
A. AGERIVS APVD N. NEGIDIVM
MENSAM ABGENTEAM DEPO8VIT,
QVA DE BE AGITVB, QVIDQVID
OB EAM BEM N. NEQIDIVM A.
AGEBIO DAEE FACEEE OPORTET
EX FIDE BONA, EIVS IVDEX N.
NEGIDIVM A. AGEBIO CONDEM-
NATO, NISI RESTITVAT. SI NON
PAEET, ABSOLVITO, in ius con-
cepta est. at ilia formula, quae
ita concepta est IVDEX ESTO.
SI PABET A. AGEEIVM APVD N.
NEGIDIVM MENSAM AEGENTEAM
DEPOSVISSE EAMQVE DOLO MALO
N. NEGIDII A. AGEEIO BEDDITAJtf
NON ESSE, QVANTI EA BBS EBIT,
TANTAM PECVNIAM IVDEX N.
NEGIDIVM A. AGEEIO CONDEM-
NATO. SI NON PABET, ABSOLVITO,
in factum concepta est. similes
etiam commodati formulae sunt.
§ 48. Omnium autem forrnu-
larum, quae condemnationem
habent, ad pecuniariam aesti-
mationem condemnatio con-
cepta est. itaque et si corpus
aliquod petamus, ueluti fundum
hominem uestem (durum) ar-
the magistrate, raise questions of
fact, as the formula in an action
against a defendant who on ser-
vice of summons neither appears
nor finds a vindex, or against a
person who makes a violent res-
cue of a person summoned to
appear ; and many other formulae
of this kind are set out in the
praetor's album.
§ 47. But some actions may be
instituted by formulae either of
law or of fact, as for instance the
actions of Deposit and Loan for
use. Thus the following for-
mula is one of law : ' Let C D
be judex. Whereas Aulus Age-
rius deposited a silver table with
Numerius Negidius, which is the
ground of action, whatsoever it
be proved that Numerius Negi-
dius is on that account bound by
good faith to convey or render to
Aulus Agerius, do thou, judex,
condemn Numerius Negidius to
pay its value, unless he make
restitution ; if it be not proved,
declare him to be absolved.'
Whereas a formula thus framed :
* Let C D be judex. If it be proved
that Aulus Agerius deposited a
silver table in the hands of Nume-
rius Negidius, and that by the
fraud of Numerius Negidius it
has not been restored to Aulus
Agerius, do thou, judex, condemn
Numerius Negidius to pay Aulus
Agerius whatever shall be the
value of the table ; if it be not
proved, declare him to be ab-
solved : ' is a formula of fact.
And there is a similar alternative
in the case of Loan for use.
§ 48. Whenever a formula con-
tains a condemnation clause, such
clause is so framed as to express
value in money. So even when
we claim a corporeal thing, like
land, a slave, a garment, gold or
silver, the judex condemns the
488
Centum, iudex non ipsam rem
condemnat eum cum quo actum
est, sicut olim fieri solebat,
(sedy aestimata re pecuniam
eum condemnat.
§ 49. Condemnatio autem uel
certae pecuniae in formula pro-
ponitur uel incertae.
§ 50. Certae pecuniae uelut
in ea formula, qua certain pe-
cuniam petimus ; narn illic ima
parte formulae ita est IVDEX N.
NEGIDIVM A. AGERIO SESTER-
TIVM X MILIA CONDEMNA. SI
NON PARET, ABSOLVE.
§ 51. Incertae uero condem-
natio pecuniae duplicem signi-
ficationem habet. est enim una
cum aliqua praefinitione, quae
uulgo dicitur cum taxatione,
uelut si incertum aliquid pe-
tamus ; nam illic ima parte
formulae ita est IVDEX N. NE-
GIDIVM A. AGERIO DVMTAXAT
SESTERTIVM X MILIA CONDEMNA
SI NOJVT PARET, ABSOLVE. Uel
incerta es£ et infinita, uelut, si
rem aliquam a possidente nos-
tram esse petamus, id est si in
remaganms ueladexhibendum ;
nam illic ita est QVANTI ~EA
RES ERIT, TANTAM PECVNIAM,
IVDEX, N. NEGIDIVM A. AGEEIO
CONDEMNA. SI NON PARET, AB-
SOLVITO. quid er^o est ? iudex
si condemnet, certain pecuniam
condemnare debet, etsi certa pe-
cunia in condemnatione posita
non sit.
§ 52. Debet autem iudex
attendere, ut cum certae pecu-
niae condemnati o posita sit,
[iv.§§ 45-52.
defendant to deliver not the thing
itself, as in the older system of
procedure, but its value in money.
§ 49. The formula either sets
out a certain sum in the Condem-
natio or is for an uncertain sum.
§ 50. It is for a certain sum in
that formula by which we claim
in the intentio that a person is
bound to pay us a liquidated debt,
for then this final part of the for-
mula runs as follows : ' Do thou,
judex, condemn Numerius Negi-
dius to pay Aulus Agerius (say,
e.g.) ten thousand sesterces ; if
it be not proved, absolve him.'
§ 51. A condemnation in an
uncertain sum of money may be
one of two kinds. In the first
kind it is preceded by some limi-
tation (commonly known as taxa-
tio). This kind may occur, for
example, when we sue for an
uncertain amount, in which case
the concluding part of the for-
mula runs thus : 'Do thou, judex,
condemn Numerius Negidius to
pay Aulus Agerius not more than
ten thousand sesterces ; if it be
not proved, absolve him ; ' or it
is named without a limitation, as
when we demand our property
from the possessor in a real ac-
tion, or demand the production
of a person or thing in a personal
action, where the conclusion runs
as follows : ' Do thou, judex,
condemn Numerius Negidius to
pay Aulus Agerius whatever shall
be the value ; if it be not proved,
absolve him.' But whatever the
claim, the judex must condemn
the defendant to pay a definite
sum, even though no definite
sum is named in the condemnatio.
§ 52. When a certain sum is
laid in the condemnatio, he must
be careful not to condemn the
iv. §§ 45-52.] CONCEPTIO FORMVLARVM
489
defendant in a greater or lesser
sum, else he makes the cause his
own : and if there is a limitation
he must be careful not to exceed
the maximum, else he is simi-
larly liable ; but he may condemn
him in less than the maximum.
neque maioris neque minoris
summa posita condemnet, alio-
quin litem suarn facit. item si
taxatio posita sit, ne pluris
condemnet quam taxatura sit ;
alias enim simiKter litem suam
facii. minoris autem damnare
ei permissum est. at si etiam
1 — | qui formulam acci-
pit, intendere debet, nee am-
plius\ certa condemna-
tione constringi — | 1 j
usque uelit.
§ 45. Cf. § 34, cpmm. In an action with a formula in factum con-
cepta, the Intentio, Si paret fecisse, ' If it appear that the defendant
has done this or that ' — ' If the defendant's act place him in a certain
class,' corresponds to the minor premiss of a syllogism of which the
conclusion is : ' Then this defendant is under such and such an
obligation to this plaintiff,' or 'This defendant is condemnable to
perform such and such a service to this plaintiff.' The major premiss
will be : ' All persons who have done such and such an act,' or, ' who
belong to such and such a class, are under such and such an
obligation/ or 'are compellable to render such and such a service
to such and such a plaintiff.' This major premiss is withdrawn from
discussion, is not permitted to be disputed ; and the issue in such
an action can only relate to the minor premiss ; in other words, is
always an issue of fact.
In an actio with a formula in jus concepta, the intentio, Si paret
oportere, 'If it appear that the defendant is under such and such
an obligation,' corresponds to the conclusion of a syllogism of which
the minor premiss is : ' The defendant belongs to such and such a
class : ' and the major : ' All persons belonging to such and such
a class are under such and such an obligation.' The major premiss
may be an alleged rule either of law or of equity, a proposition
either of civil law or of praetorian law ; and in neither case is it with-
drawn from discussion. The issue, that is to say, in an action with
a formula in jus concepta may either relate to the minor or to the
major premiss : may be either an issue of fact or an issue of law.
The following passage of Cicero speaks of actions whose formula
was in jus concepta with the additional terms, ex fide bona or the
like ; and thus making it an actio bonae fidei. Privata enim judicia
maximarum quidem rerum in juris consultorum mihi videntur esse
prudentia. ... In omnibus igitur iis judiciis in quibus EX FIDE BONA
est additum ; ubi vero etiam UT INTER BONOS BENE AU IKK ; in primisque
490 DE ACTIONIBVS [iv. §§ 45-52.
in arbitrio rei uxoriae, in quo est, QUOD AEQUIUS MELIUS, parati esse
debent. Illi enim dolum malum. illi fidem bonam, illi aequum bonum,
illi quid socium socio, quid eum qui aliena negotia curasset ei cujus ea
negotia fuissent ; quid eum qui mandasset eumve cui mandatum esset
alterum alteri praestare oporteret, quid virum uxori, quid uxorem viro,
tradiderunt, Topica, 1 7. ' Private suits of the highest importance turn
on the doctrines of the jurist. . . . In all the actions, therefore, where
the judge is instructed to look to the requirements of good faith, to
the practice of honest men, or, as in the suit of a wife against her
husband, to what is fair and equitable, the jurist should be ready to
speak. For he is the authority on what constitutes fraud or good
faith, what is good and equal, what are the mutual duties of
partners, of principal and agent, whether authorized or unauthorized,
or of husband and wife in respect of delivery of property.'
Actions in personam with formulae in jus conceptae may be either
stricti juris or bonae fidei. The actio stricti juris is generally called
condictio, § 18. (As to the proper use of the term condictio cf.
Sohm, § 80, n. 6.) The gist (gite) of the civil action of Condictio,
i. e. the circumstance whereon it lay, the title or ground of action,
was the increase of the defendant's fortune or patrimony by the
reduction of the plaintiff's patrimony without any consideration or
equivalent gain to the plaintiff. This disturbance the law restored.
The simplest, and probably the earliest, instance of the principle was
mutui datio, 3 § 90. Here the defendant's wealth is increased and
that of the plaintiff diminished by a voluntary act of the plaintiff ;
but the principle equally covers cases where the relation is not know-
ingly and intentionally initiated by the plaintiff, e. g. payment by
mistake (solutio indebiti). Many other cases of transfer of property
come under the same principle, imposing on the transferee the obli-
gation to re-transfer on account of failure of consideration (causa data,
causa non secuta). From mutui datio, or actual loan, the Condiction
was, as we have seen, §§ 18-20, applied or extended to Expensilatio and
Stipulatio, one if not both of which, probably, were imaginary loans,
that is, agreements solemnized and fortified by the fiction of a loan. We
are expressly informed that this was the case with Expensilatio, 2
§ 129, and from one etymology of stipulation which has been suggested
(stips — pecunia) and the supposed analogy of Nexum (assuming
this to have been a fictitious weighing out of bars of bronze), some
writers conjecture the same of Stipulation.
The introduction of actions stricti juris is probably of more ancient
date than the introduction of actions based on bona fides ; the
necessity, that is, of applying the power of the State to enforce the
class of obligations pursued by Condictio was earlier felt than the
necessity of compelling men by law to perform their so-called
iv. §§45-52.] CONCEPTIO FORMVLARVM 491
obligations ex fide bona. From the antithesis of strictum jus and
bona fides it might be imagined that trust, confidence, credit, reliance
on good faith, were entirely foreign to civil obligations, and were only
ingredients in equitable obligations. This is the reverse of the truth.
Greater confidence (fides) is involved in mutui datio, greater risk is
incurred by the obligee, who starts by alienating his property and
making it the property of the obligor, who denudes himself, that is,
of the remedy of vindicatio, than in any other of the real contracts,
most of which leave the promisee, even before the invention of
personal actions, armed, if need be, with the legal remedy of
vindicatio. Other real contracts we can imagine left to the pro-
tection of the moral code, to the forum of conscience, to the sanction
of public opinion, at a time when the immense confidence implied
in a loan for consumption made the enforcement of this contract by
strict legal process a matter of practical necessity. (Of. on this
subject Muirhead, Roman Law, §§ 8, 12.)
When the short, sharp, and decisive remedy of a civil action had
once been invented for mutui datio, the ingenuity of contracting
parties and jurists would soon extend the remedy to other relations
by means of a fiction of mutui datio. Expensilation, then, and
Stipulation may be regarded as artifices for transferring agreements,
originally perhaps, from the ethical code to the legal code ; but
certainly, in later times, from the laxer equitable code to the more
rigorous civil code. A great part, however, of human dealings
refuses to be governed by formal conditions, and pre-arranged, pre-
capitulated stipulations. Hence alongside of stipulatio and expensi-
latio existed Real and Consensual contracts ; alongside of Condictio
existed Judicis arbitrive postulatio ; alongside of formulae stricti
juris existed formulae bonae fidei.
The general difference between actions stricti juris and actions
bonae fidei consisted in the greater latitude of discretion allowed to
the judge in the latter. The principal specific points of difference
were the following :
(a) Actions stricti juris are based on unilateral contracts, which only
ground an action for one of the parties : actions bonae fidei are based
on bilateral contracts, on which both parties can bring actio directa ; or
on semi-bilateral contracts, on which one party can bring actio directa,
and the other actio contraria. So one-sided were condictions or
actions stricti juris that before the time of Marcus Aurelius a
set-off or counterclaim of the defendant (compensatio) could not be
pleaded except as a ground of absolution in the form of Exceptio doli.
Inst. 4, 6, 30.
(&) Actions stricti juris are governed by a literal interpretation of
the words of a disposition : in actions bonae fidei the judge inquires
492 DE ACTIONIBVS [iv. §§ 45-52.
what was the true intention of the parties ; he attends not only
to express but also to implied terms of an agreement, Dig. 3, 5,
6, and, to ascertain these, takes notice of local usages, Dig. 21,
1, 31, 20. As we distinguish between the manifestation of the will
or overt act of a delinquent and his intention, so bona fides distin-
guishes between the exact words used by contractors and their
intentions. Strictum jus adheres more rigidly, at least in early
times, to a grammatical or literal interpretation of a disposition,
and assumes that words exactly correspond to intentions. It is then
called summum jus : e. g. Verbis et literis et summo jure contenditur,
Cicero.
(c) The ground to support any given condictio or actio stricti juris
is precisely defined : whereas an actio bonae fidei, e. g. an actio
empti or venditi, can be brought not only to enforce the principal
contract — emptio venditio — but also to enforce any accessory agree-
ments made at the same time (ex continenti) as the principal contract
(pacta adjecta) or to obtain relief in respect of any circumstances
of fraud (dolus) or intimidation (metus). In the later law, however,
accessory informal agreements coalesced into a single contract when
annexed to a loan (mutuum) : Omnia quae inseri stipulationibus
possunt, eadem possunt etiam numeration! pecuniae et ideo et con-
ditiones, Dig. 12, 1, 7. In the case of a loan of money, however,
interest could not be recovered on a contemporaneous, informal agree-
ment, because the only action a loan of money could support was con-
dictio certae pecuniae: on a loan of any other quantitas but money,
such as oil or wheat, interest could be recovered, because though the
intentio of the formula was certa, the value of such things was
uncertain (condemnatio incerta) ; but this exception to the rule that
interest could not be due on a mutuum seems only to have been
made, in late times, a special stipulation on account of interest having
perhaps been required in all cases by classical law, Cod. 4, 32, 23.
Cf. Dig. 50, 16, 121 Usura pecuniae, quam percipimus, in fructu
non est, quia non ex ipso corpore, sed ex alia causa est, id est
nova obligatione. Savigny, § 268.
(d) The defence in an actio stricti juris could only allege matters
which ipso jure extinguished or annihilated a claim (e. g. solutio,
acceptilatio, novatio), or, if they founded an indirect answer of the
defendant, had been disclosed to the praetor in the preliminary
pleadings (in jure) in the form of an exceptio : whereas the judex or
arbiter who tried an actio bonae fidei could consider any pleas in
exception even when they were averred for the first time in the
course of the trial : cum doli exceptio insit de dote actioni ut in
ceteris bonae fidei judiciis, Dig. 24, 3, 21.
(e) In respect of the accessions (omnis causa) in which a defendant
iv. §§45-52.] CONCEPTIO FORMVLARVM 493
was condemned in damages, namely fructus and usurae, there was
a difference between actiones stricti juris and bonae fidei : in the
former the defendant was only liable to pay these from the date of
Litis contestatio ; whereas in the latter he was liable from the date
of Mora, 2 § 280.
(/) As all condemnations under the formulary system were in
pecuniary damages it was necessary in the event of a condemnation
that the thing in dispute should be valued in money. In actions
stricti juris the moment fixed for the valuation (aestimatio) was
Litis contestatio : in actions bonae fidei the date of valuation was
the date of Condemnatio : In hac actione sicut in ceteris bonae
fidei judiciis . . . rei judicandae tempus, quanti res sit, observatur,
quamvis in stricti (juris judiciis) litis contestatae tempus spectetur,
Dig. 13, 6, 3, 2. This is so uncontro verted that in another passage,
which seems to fix the moment of condemnatio as the moment of
aestimatio in a stricti juris action, Dig. 13, 3, 3, the opinion of the
jurist Servius is perhaps inadvertently adopted by the compilers :
we see elsewhere that the jurists differed on this subject, cf. Dig. 12,
1, 22. Both in stricti juris and bonae fidei actions, if a day was fixed
for the performance of a contract, this day was the date of aestimatio ;
and if a debtor was guilty of Mora, the creditor had his election
between Lis contestata and Res judicata respectively and the date
of Mora. In an action on Delict the date of Valuation was none of
these but the date of the Delict, i. e. the date of the inception of the
obligation. Savigny, System, § 275.
(g) Another difference related to jusjurandum in litem, i. e. the
plaintiffs sworn declaration of the value of the thing in dispute.
When a defendant contumaciously disobeys a judge's order in
a certain class of actions where judgment is preceded by an order
(arbitrium) of the judex, namely actiones Arbitrariae, including Real
actions and Personal actions brought to obtain Restitutio or Exhi-
bitio ; or when by dolus or culpa lata the defendant has disabled
himself from obeying the judge's order; then the oath of the plaintiff
as to the value of the subject of litigation fixes the amount of damages
(aestimatio) in which the defendant will be condemned subject to
the approval of the judex, who would generally allow exemplary
damages. Cf. Sohm, § 53. The same rule was also applicable in
actions bonae fidei. Examples of such actions are the actions
Deposit!, Commodati, Locati, Dotis, Tutelae, Doli, Metus, and the
interdict Unde vi. In condictions or actions stricti juris it was
only admissible under special circumstances ; and in delictal actions
when the subject of litigation had ceased to exist by the fault of the
defendant, e. g. iu the actio legis Aquiliae, and litis aestimatio would
otherwise be impossible to the judex, he might use the plaintiffs
494 DE ACTIONIBVS [iv. §§ 45-52.
oath as a subsidiary evidence for ascertaining what was the selling
value of the thing that had been destroyed or what therein was the
plaintiff's exceptional interest.
(h) If performance of a contract was due at a certain place, a bonae
fidei action could be brought to recover damages for non-performance
at any other forum as well as at the forum of the specified place,
whereas a plaintiff who brought an action stricti juris at any other
forum than the forum of the place where the contract was to be
executed would have incurred the penalties of Plus petitio ; and to
avoid this was obliged to bring his action in the form of actio
Arbitraria, § 53, comm. Inst. 4, 6, 33.
The division of actions into stricti juris and bonae fidei, properly
speaking, only embraces actions founded on contract and quasi-
contract with a formula in jus concepta: that is to say, Eeal actions,
actions with a formula in factum concepta, actions on delict, praetoria
cognitio (cognizance by the praetor without reference to a judex)
were neither stricti juris nor ex bona fide. It is probable, however,
that delictal actions (e. g. the actions furti nec-manifesti and legis
Aquiliae) were governed by the rules of actions stricti juris ;
while actiones in rem arbitrariae, and actiones in factum, and
cognitio extraordinaria were governed by the rules of bonae fidei
actiones. Vangerow, § 139. Cf. Inst. 4, 6, 28-30.
Many preliminary questions of law were undoubtedly decided at
the initial stage of an action in jure, that is, at the appearance before
the tribunal or curule chair of the praetor. At this appearance the
parties were attended by counsel (haerere in jure atque praetorum
tribunalibus [advocatos] De Oratore, 1, 38); and here, though the
praetor would not settle a dispute about facts, many demurrers or
simple issues of law or equity might be decided, and the controversy
might be terminated, if it could not be brought under any rule of
jus civile or of the edict, or if there was a confessio in jure, without
ever reaching the stage of reference to a judex. But it was an
important constitutional principle that the issue itself, which might
involve questions both of law and fact, should be decided by an
independent private person as judex, and not by the magistrate.
This principle, weakened by the growth of extraordinaria cognitio,
was abandoned under Diocletian and his successors, when, as we
have seen, all private causes came to be decided either by the
magistrate himself or by an official to whom he delegated his
authority (judex pedaneus).
§ 46. According to the Institutes, a man might not summon his
patron or parent to appear in an action without the permission of
the praetor, under a penalty of fifty solidi, Inst. 4, 16, 3. A solidus
or aureus was a hundred sesterces, so that we must either, with
iv. §§45-52.] CONCEPTIO FORMVLAEVM 495
Savigny, for ten thousand read five thousand sesterces in the text
of Gaius, or suppose that Justinian reduced the penalty to half its
original amount.
In the formulary system an appearance of the defendant before
the praetor (in jure) was indispensable as the first stage of an action.
In English law, after service of summons or proof that all proper
means for the service of summons have been used in vain, the court
will grant leave to the plaintiff to enter substituted service for the
defendant. But in Roman law an original appearance of the defen-
dant was necessary. On service of a summons (in jus vocatio) he
was bound either to obey at once and accompany the plaintiff into
court, or to send a responsible representative (vindex, § 46) in his
stead, or to find security, called cautio judicio sisti (to be thus
interpreted: cautio sisti in jure ad judicium ordinandum), for his
appearance in jure on a future day. If he took none of these steps
he was liable to an actio in factum, and he might be apprehended
and taken by force (duci in jus, Dig. 2, 8, 5,1) ; and any person who
made a violent rescue was liable to be condemned by actio in factum
to pay the amount of the plaintiff's claim, quanti ea res est ab actore
aestimata, Dig. 2, 7, 5, 1. At the first appearance in court, after the
plaintiff had stated which of the actions set out in the album he pro-
posed to bring, or had shown cause why a new action not contained
in the album should be granted to him (editio actionis), the defendant
was required to give security (vadimonium) for his second appearance
in court to receive a judex. At the second appearance, after the
nomination (addictio) of the judex and the joinder in issue or delivery
of the formula (litis contestatio, judicium ordinatum, judicium ac-
ceptum), there was (at all events in the legis actiones) an adjournment
to the next day but one (comperendinatio), and on this day the trial
before the judex (judicium) proceeded. In the formulary system, then,
there were two appearances in jure, one in obedience to the in jus
vocatio, and a second for the assignment of a judex. In the Libellary
system which prevailed in the time of Justinian the former of these
appearances was suppressed, and instead thereof the plaintiff by a
libellus conventionis sued out from the court a commonitio or
summons to the defendant to appear before the court. On the service
of this by a public officer the defendant was required to give cautio
judicio sisti, security for his appearance for the arrangement of a
judicium, and in default thereof was arrested, § 184, comm.
§ 47. The formula says Ejus [aestimationem] condemnato, not
Id condemnato, because the Condemnatio did not impose specific
performance but only pecuniary compensation. Bethmann-Hollvveg,
§ 87. The lawyer's manual of practice contained alternative formulae
for the same ground of action. Sed tameii non parcam operae, et ut
496 DE ACTIONIBVS [iv.§§45-52.
vos in vestris formulis, sic ego in epistolis, de eadem re alio modo,
Cicero ad Familiares, 13, 27. 'However, I will spare no trouble,
and as you lawyers do in your books of formulae, I will present you
in my correspondence with the same matter in another form.' Quae
cum Zeno didicisset a nostris, ut in actionibus praescribi solet, de
eadem re dixit alio modo, De Finibus, 5,19. ' Zeno learnt this from
the teachers of our school, and then, as the headings of the formulae
say, handled the same subject in a different form.'
One great advantage of the actiones in factum was that they were
available to filii familiarum. In factum actiones etiam filii familiarum
possunt exercere, Dig. 44, 7, 13. It may have been for the purpose
of enabling filii familiarum to sue that formulae in factum were given
in some actions as well as formulae in jus. Cf. 1 § 55, comm.
We shall see hereafter that actio in factum differed from actio in
jus in respect of (i) Plus petitio and in respect of (2) Novatio.
(1) An actio with a formula in factum concepta, having an in-
tentio specifying a particular state of fact as the basis of the plaintiffs
claim, cf. § 60, would be capable of plus petitio : while an actio with
a formula in jus concepta would only be capable of plus petitio where
the intentio was certa, e.g. condictio certae pecuniae or certae rei, not
where the intentio was incerta, Quidquid paret, &c.
(2) Novatio necessaria was only produced by Litis contestatio when
the formula was in jus concepta, the right of the plaintiff not being
referred to in the intentio of a formula in factum, § 107.
The words Nisi restituat (cf. formula of actio depositi, § 47),
exhibeat, are the clause which constitutes a formula arbitraria. In the
formulary system the condemnation was always pecuniary, § 48 ; the
defendant was always condemned by the judgment to pay the plaintiff
a sum of money. By means, however, of the alternative clause, nisi
restituat, &c., in a formula arbitraria the plaintiff could put pressure
on the defendant to make him restore or produce to the plaintiff a
specific thing which would be a remedy something like that of
specific performance in English Law. Thus by this clause the judex,
having pronounced against the defendant, made a preliminary order
(jussus, arbitrium) for the restitution or production of the thing ; and
if it was obeyed the defendant was absolved, but if it was disobeyed
the plaintiff was allowed to assess his own damages on oath, whereby
the defendant might in fact suffer a penalty for disobedience to the
order. In later times, indeed, it seems to have become the practice
for the judex in case of a recalcitrant litigant to forcibly (manu militari)
compel restitution. Inst. 4, 6, 31.
Actiones arbitrariae included real actions, framed as formulae
petitoriae, § 92 (e.g. vindicatio, publiciana, hereditatis petitio,
confessoria, hypothecaria, cf. Inst. 4, 6, 31, where only praetorian
iv. §§ 45-52.] FORMVLA ARBITRARIA 497
actions are given as examples), and such other actions, whether civil
or praetorian (e. g. depositi, commodati, locati, tutelae, rei uxoriae,
doli, metus, interdictum de vi, §§ 162, 163), as were brought to obtain
restitution or production. The formula arbitraria could not be used
in an actio empti, for the object of this action was not of the nature
of a restitution : nor could the formula arbitraria be employed in
actions stricti juris or actions founded on delict, since a pecuniary
condemnation was in these actions also sufficient remedy.
Of the formula arbitraria in a real action with a formula petitoria,
§§ 91, 92, we have an instance in Cicero: Lucius Octavius judex
esto : Si paret fundum Capenatem, quo de agitur, ex jure Quiritium
[P. Servili] esse, neque is fundus [Q. CatuloJ (cf. Roby, 2, 443, n. 1)
restituetur, In Verrem, 2, 12 ; cf. 1, 45. In an action for the
production as a preliminary to the restitution of a person or thing
(ad exhibendum) the clause would be of the form 'nisi exhibeat,' 'si
arbitratu tuo Aulo Agerio non exhibebitur ' and generally some special
modification of nisi actori satisfaciat. (As to the attempts which
have been made to reconstruct this formula see Lenel, tit. xv. § 90.)
In noxal actions, § 75, which are analogous in procedure to actiones
arbitrariae, there was probably no clause ' nisi noxae dedat,' but the
judgment was of the form Publium Maevium Lucio Titio decem
aureis condemno aut noxam dedere, Inst. 4, 17, 1 ; the defendant
being intended to exercise the election of paying damages or surren-
dering the author of the mischief.
As soon as the rule was established : omnia judicia esse absolutoria,
§ 114, that in every action a defendant might avoid condemnation
by satisfying the plaintiffs claim even after litis contestatio, it might
seem at first sight that the formula arbitraria was rendered
unnecessary. But this was not so ; for in actiones which were not
arbitrariae no alternative was allowed to the judex in the con-
demnatio, and the damages were not meant as a penal sum to enforce
obedience to the judge's order. Whereas in an actio arbitraria as
soon as the arbitratus or order was pronounced, the defendant would
know that he would inevitably be condemned unless he made the
restitutio or exhibitio required.
The intentio of an action with a formula in factum concepta was
sometimes one-limbed : e. g. Si paret . . . vocatum esse, § 46, and
sometimes two-limbed : e. g. Si paret (i) Aulum Agerium rem de-
posuisse (2) eamque dolo malo Numerii Negidii Aulo Agerio reddi-
tam non esse, § 47. A one-limbed intentio would be used when the
defence was a simple traverse or contradiction of the fact alleged
by the plaintiff: a two-limbed formula would be used when the
defendant confessed the fact alleged by the plaintiff, but alleged
498 DE ACTIONIBVS [iv.§§ 45-52.
a second fact (performance, release, novation, &c.) whereby the obliga-
tion created by the former was extinguished or counteracted.
Accordingly it would be a mistake to suppose that the clause:
eamque dolo malo Numerii Negidii Aulo Agerio redditam non esse :
was equivalent to the arbitratus or clause ' Ni restituat ' which in the
preceding formula limits the condemnatio. The former clause raises
the question whether restitution was made before the action was
brought to trial (ante judicium acceptum), i. e. it is a clause in the in-
tentio raising the question whether the action is well founded : the
clause 'Ni restituat,' which concerns the condemnatio, gives the
defendant power to make restitution at any time after the action was
brought but before the condemnatio : and there is no reason why the
clause ' Ni restituat ' should not be added to the double-limbed as well
as to the single-limbed formula in factum concepta or the formula in
jus concepta. Thus we see that an actio in factum or an actio bonae
fidei may or may not be also arbitraria (cf. Sohm, p. 289). The
position of the clause 'Nisi restituat ' varied : (i) in real and praetorian
personal actions, the latter with an intentio in factum concepta,
the words Neque (or nisi, &c.) ea res arbitrio judicis restituetur, Dig.
4, 2, 14, 11, intervened between the intentio and condemnatio; (2)
in a bonae fidei actio ' Nisi restituat ' followed the first clause of the
condemnatio, § 47. The Edict used the clause ' Nisi restituat' or its
equivalent in other actions which are not Arbitrariae : e. g. in actio
de recepto : — Nautae, caupones, stabularii, quod cujusque salvum fore
receperint, id Nisi restituent, in eos judicium dabo, Dig. 4, 9, 1, pr. ;
and against Publicani, Dig. 39, 4, 1, pr. Here, it would seem, the
non-restitution would form a part of the intentio, and would refer
to the time before Litis contestatio. In actio Constitutae pecuniae
the intentio was composed of three allegations : a pre-existing debt,
a promise to pay, and its non-fulfilment, § 171, comm.
§ 48. From the expression of Gaius, non ipsam rem condemnat
sicut dim fieri solebat, we might suppose that statute-process (legis
actio) differed from Formulary procedure in that, while in the latter
the condemnation was always pecuniary, in the former, as in the
last stage of Roman Law, the plaintiff recovered the specific object
of litigation and not its pecuniary value. But it would be strange if
Roman jurisprudence had thus retrograded, and its second stage had
been less perfect than its first : and the meaning of Gaius doubt-
less is, that, whereas in the Formulary system a single action decided
the claims of the plaintiff and assessed their money value, in the primi-
tive system two actions were necessary ; a principal action to decide
on the justice of the plaintiffs claim, and a supplementary action or
proceeding to transform it into money. Probus (see Huschke, Jurispr.
Antejust.) apparently refers to such a proceeding in which the plaintiff
iv. §§ 45-52.] LITIS AEST1MATIO 499
who had succeeded in his principal suit demanded an arbiter to assess the
damages, when he uses the term A. L. A. or Arbitrum liti aestimandae.
This arbitrium would not be reckoned among the forms of statute-
process because it was merely accessory to the actio sacramenti or
principal action. Bethmann-Hollweg, § 87. Keller, C. P. § 16.
Two incidents of litis aestimatio in the formulary procedure
deserve notice: (i) Jusjurandum in litem, and (2) the determination
of the moment to be considered by the judex in appraising the
value of the plaintiffs interest.
(1) Jusjurandum in litem was not like Jusjurandum necessarium
a substitute for a judgment, but only one of the means of proof
whereon in certain actions a judgment might be founded. These
actions were (a) principally actiones arbitrariae, though they might be
also simply bonae fidei actiones. To induce the defendant to avoid
condemnation by obedience to the judge's arbitratus, if the defendant
contumaciously refused obedience, or by dolus or culpa lata had
rendered himself unable to yield obedience to the order of the judex,
the value of the plaintiffs interest in the subject of litigation (litis
aestimatio) was not ascertained, as in other cases, by the judex with
or without the aid of experts, but by the oath of the plaintiff.
Although he was required to name the true value (quanti actoris
intersit), not a mere fancy value or so-called value of affection, yet
his conscientious estimate would naturally be higher than that of an
impartial judge or disinterested valuer : and the largeness of the
alternative condemnation would incline the defendant to make a
specific restitution.
(&) Even in actiones stricti juris and actiones ex delicto, if litis
aestimatio, owing to the culpa of the defendant, is otherwise
impossible to the judex ; if, for instance, in the' aetio legis Aquiliae
the subject has ceased to exist, then the judex may employ the oath
of the plaintiff as a subsidiary evidence of the plaintiffs particular
interest in the subject and of its market value. The actio injuriarum
given by the Praetor is specially called aestimatoria because damages
in it were assessed in this way, 3 § 224. Vangerow, § 171.
(2) The Date of valuation, or time at which the value of the
specific thing due from the defendant was estimated, depended on
the nature of the action. As a general rule the date of valuation in
stricti juris actions was the date of Litis contestatio, in Bonae fidei
and Real actions the date of Condemnatio, Dig. 13, 6, 3, 2. But
if a date for performance had been fixed in a contract that date was
the date of valuation, Dig. 1 3, 3, 4. Again, if the defendant had
been guilty of Mora, 2 §§ 260-289, comm., the plaintiff had his
election between any of these dates and the date of Mora, Dig. 19,
1, 3, 3, Dig. 17, 1, 37. The foregoing only relates to Eeal actions
K k 2
500 DE ACTIONIBVS [iv. §§ 45-52.
and Personal actions grounded on Dispositions (contracts and quasi-
contracts) : in personal actions grounded on Delict, the date of
valuation was the date of delict, the date, in other words, of the
inception of obligation.
These different dates for valuation were expressed in the formula
by a different wording of the Condemnatio. In Eeal actions, §51,
and in Bonae fidei actions, § 47, where the date was the date of passing
judgment or condemnation, the formula contained the words : quanti
ea res erit ; in delicts, where the date of valuation was the date of
delict, it contained the words : quanti ea res fuit, Dig. 9, 2, 2. No
traces exist of the condemnatio employed in Condictions whose time
of valuation was the time of Litis contestatio ; but there can be
little doubt that it contained the words : quanti ea res est, Savigny,
§275.
It has already been mentioned, 3 § 212, comm., that the value
assessed might be not simply the market value of the thing but its
value to the plaintiff, including mediate as well as immediate value.
In the legislation of Justinian the rules respecting litis aestimatio
were of somewhat less importance, because the condemnatio would
be in some cases no longer pecuniary but might command the con*
veyance of property (dare), delivery of possession (tradere), restitution
(restituere), or production (exhibere), of the specific thing itself that
was the object of litigation. The defendant was no longer invited,
as in the actio arbitraria of the formulary system, but compelled by
the armed force of the state, to make specific delivery or restitution,
Dig. 6, 1,68. 'If a defendant allege inability to obey an order of
restitution, if the thing exists, the court uses the military power to
put the plaintiff in possession, and only condemns the defendant
for the mesne profits and deteriorations. If the defendant has
maliciously disabled himself from restitution, he is condemned in
the amount, subject to no taxation of the amount, at which the
plaintiff on oath assesses his loss ; if the inability is not maliciously
produced, the judge assesses the damages. This applies to all inter-
dicts and actions, real and personal, where the court orders restitution.'
But in most obligations of performance or non-performance the
condemnation was still necessarily pecuniary : Quia non facit quod
promisit, in pecuniam numeratam condemnatur, sicut evenit in
omnibus faciendi obligationibus, Dig. 42, 1, 13.
§ 49. In condictio certae pecuniae, as we have seen, § 5, comm., both
the Intentio and the Condemnatio are certae : in condictio Triticaria,
as in Real actions, the Intentio, naming certa res, is likewise certa ;
but the Condemnatio, containing the words, Quanti ea res est, is
incerta. A loan (mutuum) of money (pecunia certa credita) always
gave rise to a condictio certae pecuniae and could not be recovered
iv. §§ 53-60.] PLVS PETITIO 501
by any other form of suit : whereas a loan (mutuum) of any other
quantitas (corn, wine, oil, &c.) founded a condictio triticaria. The
difference of the formulae in these actions explains the following
rule of substantive law, which otherwise seems capricious : A valid
informal convention (nudum pactum) for interest could be annexed
to a loan of corn, wine, or oil, Cod. 4, 32, 23, but not to a loan of
money, Dig. 19, 5, 24.
The reason was this : the loan of any other quantitas than money,
having an incerta condemnatio, allowed the judge of a suit brought
for recovery of the principal to include interest in the sum which
he condemned the defendant to pay : whereas the money loan
having a certa condemnatio, coinciding with the intentio in the sum
it denned, the judge of a suit brought for the principal, under pain
of litem suam facere, § 52, could only condemn the defendant to pay
the principal.
If, then, interest on a loan of money was intended to be paid, it
was necessary to secure it by a formal contract (stipulatio) which
would found an actio ex stipulatu distinct from the condictio certi
which might be brought for the principal : whereas interest for 'any
other quantitas could be secured by a pactum nudum annexed to
the agreement to return number, weight, or measure of the principal,
and recovered in the action brought for the principal.
As the stringency of the rule respecting money loans depended on
the peculiarity of the formula, it should not have been retained by
Justinian after the abolition of the Formulary procedure. Savigny,
System, § 268.
The wording of the formula in Condictio certae pecuniae was
doubtless the reason why in the Formulary period the legatee could
not recover interest on his legacy, 2 § 280.
§ 52. A judex might make a cause (liability, condemnation) his
own (litem suam facere) by corruption or carelessness, Inst. 4, 5, 1, pr.
Thus if he gave a wrong judgment from dolus, he was liable to be
condemned in the whole amount under litigation, Dig. 5, 1, 15, 1. If
from culpa, he was liable to be condemned in such damages as the judge
in his discretion should assess, Dig. 50, 1 3, 6. This is one of the obliga-
tions classified in the Institutes of Justinian and also by Gaius in the
passage of the Digest last cited, which is an excerpt from his writings,
under the head of obligationes quasi ex delicto or quasi ex maleficio.
§53. |Si quis intentione phis §53. if the Intentio claim
conplexus fuerit, causa cadit, m0re than the plaintiff is entitled
(id est rem perdit, nee a prae- to, he loses his entire claim, and is
tore in integritm restituitur not restored to his original posi-
excepfrts | quibusdam casibus, tion by the praetor except in a few
502
in quibus-
turl
DE ACTIONIBVS
[iv. §§ 53-60.
-praetor non pati-
Inst. 4, 6, 33.
§ 53 a. Plus autem qucuttuor\
modis petitur: re,tempore, loco,
causa, re, ueluti si quis pro x
jmilibus quae ei debentur xx
milia petierit, aut si is, cuius \
ex parte res est, totam earn aut
maiore ex parte suam \ esse
intended. Inst. 1. c.
§ 53 6. Tempore plus petitur,
ueluti si quis \ ante diem
petierit. Inst. 1. c.
§ 53 c. Loco plus petitur,
ueluti si quod certo loco \ dari
promissum est, id olio loco sine
commemoratio\n.e eius loci pe-
tatur, uelut si quis ita stipu-
latus fuerit EPHESI \ DARE
SPONDES ?, deinde Romae pure
intended DAEI SIBI OPOKTEBE.
[dare mihi oportere
(2 uersus in C legi nequeunt)
petere id est non adiecto
loco. Inst. 1. c.
§ 53 d. Causa plus petitur,
uelut si quis in intentione tollat
electionem debitoris quam is
habet obligationis iure : uelut
si quis ita stipulatus sit SESTER-
TIVM X MILIA AVT HOMINEM
STICHVM DARE SPONDES? deinde
alterutrum ex his petat; nam
quamuis petat quod minus est,
plus tamen petere uidetur, quia
potest aduersarius interdum
facilius id praestare quod non
petitur. similiter si quis genus
stipulatus sit, deinde speciem
petat : ueluti si quis purpuram
stipulatus sit generaliter, deinde
Tyriam specialiter petat ; quin
etiam licet uilissimam petat,
idem iuris est proper earn
rationem quam proximo dixi-
cases where minors and others are
not permitted by him to suffer the
consequences of their mistake.
§ 53 a. A plaintiff may claim too
much in four ways, (i) in amount,
(2) in time, (3) in place, (4) in hia
statement of the case : in amount,
if instead of ten thousand sester-
ces, which are due to him, he claims
twenty thousand, or if being co-
proprietor he claims as sole pro-
prietor, or more than his share :
§ 53 6. in time, if he demands
to be paid at an earlier time than
he stipulated for :
§ 53 c. in place, if he demands
payment at a forum without men-
tioning that it is not the place at
which he contracted to be paid :
if, for instance, having stipulated
— ' Do you promise to pay at
Ephesus.?' he subsequently sues
at Kome for payment without re-
ferring in his formula to Ephesus.
§ 53 d. He claims too much by
his statement of the case if he
deprives the debtor of an election
to which he was entitled by the
contract ; for instance, if he stipu-
lated to receive alternatively either
ten thousand sesterces or the slave
Stichus, and makes an uncondi-
tional claim for one or the other.
For though the one that he claims
be of lesser value, he nevertheless
seems to claim too much because
the other may be more convenient
for the debtor to render. So if
he stipulated for a genus and
demands a species, stipulated, for
instance, for purple and demands
Tyrian purple, even though he
demand the cheapest species, he
claims more than his due, for the
same reason. So he does if he
iv. §§53-60.]
PLVS PETITIO
503
mus. idem iuris est, si quis
generaliter hominem stipulatus
sit, deinde nominatim aliquem
petat, uelut Stichum, quamuis
uilissimum. itaque sicut ipsa
stipulatio concepta est, ita et
intentio formulae concipi debet.
Inst. 1. c.
§ 54. Illud satis apparet in
incertis formulis plus peti non
posse, quia, cum certa quantitas
non petatur, sed QVIDQYID ad-
uersarium DARE FACERE OPOR-
TET intendatur, nemo potest
plus intendere. idem iuris est
et si in rem incertae partis
actio data sit : uelut taKs
QVANTAM PARTEM PARET IN EO
FVNDO QVO DE AGITVR actoris
ESSE ; quod genus actionis in
paucissimis causis dari solet.
§ 55. Item palam est, si quis
aliud pro alio intenderit, nihil
eum periclitari eumque ex in-
tegro agere posse, quia nihil
ante uidetur egisse : ueluti si is,
qui hominem Stichum petere
deberet, Erotem petierit ; aut
si qilis EX TESTAMENTO DARI
sibi OPORTERE intenderit, cui
ex stipulatu debebatur ; aut si
cognitor aut procurator inten-
derit si&i DARI OPORTERE.
Inst. 4, 6, 35.
§ 56. Sed plus quidem inten-
dere, sicut supra diximus, peri-
culosum est ; minus autem in-
tendere licet ; sed de reliquo
intra eiusdem praeturam agere
non permittitur. nam qui ita
agit, per exceptionem excludi-
tur, quae exceptio appellatur
litis diuiduae. Inst. 4, 6, 34.
§ 57. At si in condemnations
plus positum sit quam oportet,
actoris quidem periculum nul-
lum est,sed (reus cum) iniquam
stipulated generally for a slave
and claims a certain slave, Stichus,
for instance, however worthless.
The intentio, then, must exactly
pursue the terms of the stipu-
lation.
§ 54. It is clear that an intentio
naming an uncertain sum as due
to the plaintiff, cannot be ex-
cessive, for it claims no certain
quantity, but only whatever the
defendant ought to convey or per-
form. The same is true of real
actions to recover uncertain shares,
as that whereby a plaintiff claims
whatever portion of an estate he
may be entitled to, which kind
of action is very seldom granted.
§55. It is also clear that the plain-
tiff who claims the wrong thing
in his intentio, runs no risk and
can bring a fresh action because
his right has not been tried ; if he
is entitled, for instance, to Stichus
and claims Eros, or if he is entitled
by stipulation and alleges in the
intentio that he is entitled to have
the object made over to him under
a will, or if a cognitor or procurator
claim to have the object made over
to him in his own right instead of
in the right of his principal.
§ 56. To claim too much in the
intentio, as I have said, is dan-
gerous ; but a man who claims in
the intentio less than his right
does not forfeit his right, but can-
not sue for the remainder in the
same praetorship, for he is repelled
by the exception against division
of actions.
§ 57. If too much is claimed in
the condemnatio the plaintiff is
not imperilled, but, since the de-
fendant has taken a formula
504
DE ACTIONIBVS
[iv. §§ 53-60-
formulam acceperit, in integrum
restituitur, ut minuatur con-
demnatio. si uero minus posi-
tum fuerit quam oportet, hoc
solum consequitur {actor} quod
posuit ; nam tota quidem res in
iudicium deducitur, constringi-
tur autem condemnations fine,
quam iudex egredi non potest.
nee ex ea parte praetor in inte-
grum restituit; facilius enim
reis praetor succurrit quam
actoribus. loquimur autem ex-
ceptis minoribus xxv annorum ;
nam huius aetatis hominibus in
omnibus rebus lapsis praetor
succurrit.
§ 58. Si in demonstration
plus aut minus positum sit,
nihil in iudicium deducitur, et
ideo res in integro manet ; et
hoc est quod dicitur falsa de-
monstratione rem non perimi.
§59. Sedsuntquiputantminus
recte conprehendi, ut qui forte
Stichum et Erotem emerit, recte
uideatur ita demonstrare QVOD
EGO DE TE HOMINEM EROTEM
EMI, et si uelit, de Sticho alia
formula agat, quia uerum est
eum qui duos emerit singulos
quoque emisse ; idque ita ma-
xime La&eoni uisum est. sed
si is qui unurn emerit de duobus
egerit, falsum demonstrat. idem
et in aliis actionibus est, ueluti
commodati et depositi.
§ 60. Sed nos apud quosdam
scriptum inuenimus, in actione
depositi et denique in ceteris
omnibus, ex quibus damnatus
unusquisque ignominia notatur,
eum qui plus quam oporteret
demonstrauerit, litem perdere :
ueluti si quis una re deposita
which is unfair to him, he may
obtain a reduction of the con-
demnation by in integrum resti-
tutio. If less is laid in the con-
demnatio than the plaintiff is en-
titled to, he only obtains that
amount, for his whole right has
been brought before the judex and
is restricted by the amount laid in
the Condemnatio, a limit which
the judex cannot exceed ; and in
this case the praetor gives no
relief by in integrum restitutio,
for he is more ready to relieve
defendants than plaintiffs, except-
ing always minors, whom he in-
variably relieves.
§ 58. If more or less is laid in
the demonstratio, the plaintiff's
right is not at all brought into
the action and therefore remains
intact, and this is the meaning of
the saying, that a right is not con-
sumed by a false demonstration.
§ 59. Some think that the de-
monstratio may be properly re-
stricted to less than is due ; thus a
man who has bought both Stichus
and Eros may state in his Demon-
stratio, ' Whereas I bought of you
the slave Eros/and sue for Stichus
by another formula, because it is
true that the purchaser of both
is also the purchaser of each ;
and this was more especially
Labeo's opinion. But if the pur-
chaser of one sues in respect of
two, the Demonstratio is false ;
and the same principle applies
to actions of Loan for use and
Deposit.
§ 60. I have read in some
writers that in actions of Deposit,
and wherever condemnation in-
volves infamy, a plaintiff loses
his action if his demonstratio
exceeds the amount due, for in-
stance, if he deposited one thing
and says in the demonstratio that
IV. §§ 53-60.]
PLVS PETITIO
505
duas pluresue (se <Ze)posuisse
demonstrauerit ; aut si is, cui
pugno mala percussa est, in
actione iniuriarum etiam aliam
partem corporis percussam sibi
demonstrauerit. quod an debea-
mus credere uerius esse, dili-
gentius requiremus. certe cum
duae sint deposit! formulae, alia
in ius concepta, alia in factum,
sicut supra quoque notauimus,
et in ea quidem formula, quae
\n ius concepta est, initio res de
qua agiturdemonstratorio modo
designetur, deinde inferatur
iuris conte^tio his uerbis QVID-
QVID OB EAM EEM ILLVM ILLI
DARE FACERE OPORTET ; in ea
uero quae in factum concepta
est, Btatim initio mtentionis alio
modo res de qua agitur designe-
tur his uerbis si PARET ILLVM
APVD (ILLVM BEM) ILLAM DE-
POSVISSE : dubitare non debe-
mus, quin si quis in formula,
quae in factum conposita est,
plures res designauerit quam
deposuerit, litem perdat, quia
in intentione plus pos —
(24 uersus in C legi nequeunt)
Inst. 4, 6, 36-38
(24 uersus in C legi nequeunt)
Inst. 4, 6, 39.
he deposited two, or if he was
struck in the face and his de-
monstratio in an action of assault
says he was struck in other parts
also. But let us carefully examine
this opinion. There are two for-
mulas of the action of Deposit,
one framed in jus, the other in
factum, as we said before, § 47.
The formula in jus begins by
denning the title or ground of
action in the demonstratio, and
then in the Intentio which fol-
lows introduces as a consequence
the question of law in these
terms : ' Whatever the defendant
ought on account of this thing to
convey or perform.' Whereas
the formula of fact commences
at once without any preceding
demonstratio with another form
of intentio designating the ground
of action, thus : ' If it be proved
that such a plaintiff deposited
such a thing with such a defen-
dant.' Certainly in the latter
case, that is, in a formula of fact,
if the plaintiff asserts that he
deposited more things than he
really deposited, he loses the
action, because the excess is in
the intentio ....
§ 53 c. According to Eoman law a judex could only condemn a
defendant to make payment at a place within the jurisdiction. Hence
when the Forum or jurisdiction of a court in which an action on
a contract is brought happened to differ from the place specified in
the contract as the place where a certain act (payment, delivery,
conveyance, &c.) was to be performed, if the contract was such as
naturally to ground a Condictio (actio stricti juris), he could not con-
demn ; and so in order to avoid the fault of Plus petitio, which would
be fatal to the present claim and to any subsequent claim on the same
contract, it was necessary to sue, not by a Condictio which would be
the proper form if the action were brought at the stipulated place
of performance, but by a special kind of formula Arbitraria (actio
de eo quod certo loco). In such an actio Arbitraria the judge could
506 DE ACTIONIBVS [iv. §§53-60.
consider the difference of place and meet the demands of equity by
increasing or diminishing the amount which his arbitratus required
the defendant to pay in order to avoid condemnatio. If the contract
were such as to give rise to an actio bonae fidei, it would not be
necessary to sue by formula Arbitraria in order to avoid Plus petitio,
for the judex of an actio Ex bona fide had more discretion than the
judex of a Condictio and by the wording of his commission, Ex fide
bona, could allow for the difference of place if performance were
enforced at a place different from that specified in the contract.
A defendant who lost an action was bound to make payment at the
forum where the action was brought: ibi erit praestandum ubi petitur,
Dig. 30, 47, 1. So where no place of performance was implied or
fixed by the contract, the plaintiff could sue the defendant, in any
place where the condemnation could be enforced against him.
To understand the foregoing we must consider th« various tribunals
before which an action can be instituted : at what forum or before
what judge a plaintiff can sue a defendant.
The Forum at which an action can be brought is twofold : it is
either General or Special. The General forum is the forum of the
domicil of the defendant : actor rei forum, sive in rem sive in per-
sonam sit actio, sequitur, Cod. 3, 19, 3. Juris ordinem converti
postulas, ut non actor rei forum sed reus actoris sequatur, Cod. 3,
13, 2. See 3 § 75, comm.
The Special forum depends on the nature of the right to be
litigated : or the department of the code to be applied.
The special forum of a Eeal right may be the forum where the Res
(object of property, servitude) is situated (forum rei sitae). This was
not established in classical Roman law, when execution related not to
res but to litis aestimatio, but only in the later period. Non ejusdem
provinciae praesidem adeundum ubi res de quibus agitur sitae sunt,
sed in qua is qui possidet sedes ac domicilium habet. Frag. Vat. § 326.
The special forum of an Obligation is generally, in Roman law,
the forum of the place where the act is covenanted to be performed
(forum Solutionis). It was when a stipulation was enforced at the
general forum of the defendant instead of at the special forum of
the stipulation that it was necessary to use the formula Arbitraria.
For the rules of English law on this subject, which are of a less
restricted character than those of Roman law. see order 1 1 rule 1.
The special forum of a Delict is the place where the delict wa
committed.
The special forum of Insolvency coincides in Roman law with the
general forum, i. e. is the domicil of the insolvent.
The special forum of the action for claiming anything by title of
an inheritance (hereditatis petitio) is the forum of the place where
iv. §§ 53-60.] PLVS PETITIO 507
the object of inheritance is situated which the heir is claiming (forum
rei Sitae).
Distinct from the question of the Forum that has jurisdiction
over a right or obligation is the question of the Law that defines
such right or obligation : what local, municipal, or national Law
governs the relation of the plaintiff and defendant, and has to be
administered by the Forum, whatever and wherever it may be, that
exercises jurisdiction.
The question of the Forum before which a suit must be instituted
and of the particular Law which such Forum must administer may
arise (i) within the limits of a single state when divided, like the
Roman empire, into municipalities with separate jurisdictions and,
to a certain extent, separate laws: or (2) in more or less inti-
mate unions of cantons, or states, such as we see in Switzerland,
Germany, America ; or (3) between different sovereign states.
The territorial, local, or municipal law that governs a particular
question may be determined by various circumstances such as the
domicil or the nationality (as in some modern codes) of a person
(testator, intestate, insolvent, husband, disposer, debtor, &c.) : the
place where the object of property is situated : the place of per-
formance of an act past or future (disposition, stipulated service):
or the place where the formalities of an act were transacted.
Thus in a question of Ownership the law to be applied may be
the lex loci rei Sitae. E. g. in France property in goods passes by
contract of sale, in Germany by tradition. A Frenchman in France
sells to another Frenchman his goods in Germany. The property
only passes by tradition. A German in Germany sells to another
German his goods in France. The property passes by the mere
contract of sale.
In a question of contract the law to be applied generally depends
on the intention of the parties as shown by their agreement ; thus the
law which is intended is often presumed to be that of the place of
performance.
The Roman doctrine that Inheritance is a Universal succession
implies that the ideal patrimony has its single seat in the nationality
or domicil of the heritage-leaver and is governed by the law of that
nationality or domicil. Thus the law which governs Succession is
not, after the analogy of the former cases, the law of the special
forum of Succession : for whereas the law which governs Succession
is the law of the heritage-leaver's nationality or last Domicil, we
have seen that the special forum of Succession, in respect of objects
of ownership, is the forum rei Sitae.
But though the law of the testator's nationality or last domicil
principally governs his dispositions (questions relating to institution,
508 DE ACTIONIBVS [iv. §§ 53-60.
disinheritance, preterition, inofficiositas, legacies, &c.), yet there are
some elements of a will to which other laws must be applied. The
capacity of the testator (testamenti factio, commercium) must exist
both at the date of executing the will and at the date of his decease :
and must be tested at the former date by the law of his then domicil.
Again the capacity of honoratus (heir or legatee) is governed by the law
of the domicil of honoratus at the time of the testator's death. Indeed
in Koman times, though not in modern Germany, this capacity was
required at tria tempora, the making of the will, the death of the
testator, and the acquisitio by honoratus, 2 §§ 109-114, comm., and
was governed at each period by the law of his then domicil.
The Capacity of a person for contracting and otherwise disposing
is governed by the law of his nationality or domicil: with this j
reservation, that Majority once attained cannot be divested in respect ]
of past acts by a mere change of domicil : by settling, that is to say, i
in a new domicil where majority comes later.
The validity of the Form of any disposition (contract, marriage,
testament, &c.) may depend on the law by which the substance of the j
disposition is governed (the law of the stipulated place of perform-
ance, the law of the husband's nationality or domicil, the law of the
testator's domicil at the time of making his will). But inconveniences ;]
would arise if this law were exclusive. For instance, a German will
can only be made with the assistance of a court. In France no court I
is authorized to give its assistance to the execution of a will, I
which is the function of the Notary. A German, then, domiciled
in Germany but dying in France, would be unable to execute a will
if he could only do it in the form prescribed by German law. 1
Accordingly, as an alternative to the law that governs the disposi- •
tion, the law of the place where the disposition is made is accepted : •
and the form of a disposition is valid if it satisfies either the proper
law of the disposition or the law of the territory in which the dis-
position is made. The applicability of the latter law is expressed
by the maxim : Locus regit actum. We must except the forms of
Alienation which must always satisfy the lex rei sitae.
Procedure is governed by the law of the forum where a suit is
instituted. Dilatory exceptions, accordingly, as based merely on rules
of procedure, depend on the law of the forum. But the material
contentions of the defence, that is, the rights of the defendant,
whether ipso jure extinctive, or per exceptionem peremptoriam
counteractive, of the rights of the plaintiff, are governed by the
same law as the rights of the plaintiff; that is by the local law
that governs the obligation. The Exceptio Sc. Macedoniani and Sc.
Vellaeani, however, as relating to personal Capacity, are governed
by the law of the domicil of the person in question.
iv. §§53-60.] PLVS PETITIO 509
Procedure in Bankruptcy being a partial or imperfect Execution,
its leading feature, the Classification or marshalling of creditors, like
other matters of Procedure, is governed by the law of the Forum by
which the execution is superintended, which will, generally speaking,
be the law of the nationality or domicil of the Insolvent. The priorities
of the purelypersonal creditors, that is to say, will be governed by thelaw
of the forum: but where there are hypothecary creditors who hold mort-
gages over property of the insolvent in other lands, their priorities
involving questions of Eeal rights will depend on the lex rei sitae. The
preliminary Proof by the creditors of their particular claims will be
governed by the law (law of the stipulated place of performance, &c.)
which according to general rules is applicable to the obligations they
respectively seek to enforce.
Exceptions to most of the preceding rules are produced not only
by general variations in principle between the administration of
Private International Law in different states but also by the exis-
tence of Imperious and Anomalous laws: laws based on religious,
moral, political, financial, administrative, instead of purely civil,
motives : such as laws relating to heresy, usury, gambling, revenue,
mortmain; or laws implying institutions (e.g. slavery, civil death)
unrecognized by other states. Each forum enforces its own Imperious
or Anomalous laws, and disregards those of its neighbour. For
instance a monogamist forum will not enforce polygamistic laws, nor
will any forum enforce the penal laws which a neighbour levels
against its coreligionists.
Obligation founded on Delict is always the subject of such Im-
perious laws: accordingly civil obligation ex delicto, unlike obliga-
tion ex contractu, is governed by the laws of the state in which it
is remedied.
The rules of which the above are a specimen constitute what is
called the Comity of nations or Private international law. The ideal
aim of the Comity of nations is : that the judgment passed on any
controversy should be identical whatever may be the tribunal that
happens to exercise jurisdiction. Savigny, System, vol. 8. Cf.
Westlake, Treatise on Private International Law, and Dicey, Conflict
of Laws.
§ 53 &. The penalty of plus petitio in respect of time was reduced
by Zeno, who merely doubled the term that was still to run before
payment, and required the creditor to pay the costs of the former
action before he brought a second, Cod. 3, 10, 1. The effect of this
was to change the meaning of the term ' dilatoria,' which, as applied
to an exceptio and opposed to peremptoria, denoted an exceptio
alleging plus petitio in Time.
When Gaius wrote, such an exception, if successfully alleged, was
510 DE ACTIONIBVS [iv. §§ 53-60.
just as fatal to the creditor as an exceptio peremptoria. It was
temporary, not in respect of its effects, but of the limited period
during which it was at the command of the debtor. But after Zeno
such an exceptio was temporary in its effects, and did not prevent
a renewal of the action after a certain lapse of time, that is, after
the expiration of the term originally fixed for the payment, and an
additional term measuring the temporal excess of the plaintiff's claim.
Justinian retained Zeno's law in respect of Time, and disarmed the
other modes of plus petitio of their terrors, by merely making the
creditor liable to three times the amount of the loss that his exorbi-
tant claim had caused to the debtor, particularly in respect of the
fees (sportulae) of the executive officers (executores), Cod. 3, 10, 2.
§ 55. A plaintiff who had made a mistake in the subject of his
claim was allowed by Justinian to amend his claim without instituting
a new action.
It seems from this paragraph that the title or ground of action
(causa debendi) was sometimes specified in the Intentio. Perhaps
this was done in condictio ex testamento and actio ex stipulatu, which
had no Demonstratio, and then availed to prevent the consumption
of the right of action ; that is, the allegation of the plea of Ees judicata
when the plaintiff afterwards claimed the same sum but founded his
claim on a different title. Cf. § 131.
§ 56. A plaintiff whose intentio claimed less than he was entitled
to was allowed by Zeno to obtain the full amount without instituting
a new action, Inst. 4, 6, 34.
§ 58. As plus petitio implies intentio certa, and the existence of
a demonstratio involves intentio incerta, it follows that excess in the
demonstratio cannot involve plus petitio. Again, as the demonstratio
does not determine what is the res in judicium deducta, a falsa
demonstratio cannot consume the true ground of action.
§ 60. It appears that some jurist had regarded the first clause of
an actio in factum, si paret . . . fecisse, as a demonstratio. Gains
himself, in speaking of this clause, used ambiguous terms, nominato
eo quod factum est, § 46. But it is clear from § 60 that he holds it
to be no Demonstratio, but an Intentio.
The plaintiff who lost an actio in factum did not, strictly speaking,
lose his right to bring another action, for novatio, or transformation
of his original right into a right to have judgment, was only
operated by the commencement of a personal action in jus. But
this made no practical difference, for though his own right (ipsum
jus) was not extinguished, it was counterpoised by an opposite right
of the defendant based on the claim having been brought to trial
(exceptio rei in judicium deductae or judicatae), which would cause
any suit instituted by the plaintiff to be dismissed.
iv. §§61-68.] COMPENSATIO ET DEDVCTIO
511
§ 61. continetur, ut
habita ratione eius, quod inui-
cem actorem ex eadem causa
praestare oporteret, in reliquum
eum cum quo actum est con-
demnare. Inst. 4, 6, 30.
§ 62. Sunt autem bonae fidei
indicia haec : ex empto uendito,
locato conducto, negotiorum
gestorum, mandati, deposit!,
fiduciae, pro socio, tutelae, rei
uxoriae, (commodati, pignera-
ticium, familiae erciscundae,
communi diuidundo).
Inst. 4, 6, 28.
§ 63. Liberum est tameniudici
nullam omnino inuicem con-
pensationis rationem habere ;
nee enim aperte formulae uerbis
praecipitur, sed quia id bonae
fidei iudicio conueniens uidetur,
ideo officio eius contineri cre-
ditur.
§ 64. Alia causa est illius
actionis qua argentarius expe-
ritur : nam is cogitur cum con-
pensatione agere, et ea conpen-
satio uerbis formulae exprimi-
tur: adeo quidem, u£ ab initio
conpensatione facta minus in-
tendat sibi dari oportere. ecce
enim si Bestertium x milia
debeat Titio, atque ei xx de-
beantur, sic intendit si PAKET
TITIYM SIBI X MILIA DARE OPOR-
TERE AMPLIVS QVAM IPSE TITIO
DEBET.
§ 65. Item 6onorum emptor
cum deductione agere iubetfur,
id est ut in hoc solum aduersa-
rius eius condemnetur quod
superest, deducto eo quod inui-
§ 61 . In bonae fidei actions the
judex has full power to assess on
good and equitable grounds the
amount due to the plaintiff, and
can take into account the cross
demand in the same trans-
action of the defendant, and
condemn the defendant in the
remainder.
§ 62. Bonae fidei actions are
those of Purchase and Sale, Let-
ting and Hiring, Unauthorized
Agency, Agency, Deposit, Fidu-
ciary conveyance, Partnership,
Guardianship, dotal property,
[loan of use, Pledge, Partition
of inheritance, Partition of pro-
perty held in common].
§ 63. The judex may, if he
pleases, refuse to take any account
of a set off, since he is not ex-
pressly instructed by the terms
of the formula to do so, but as it
seems suitable to the nature of
a bonae fidei action, the power is
assumed to be contained in his
commission.
§ 64. It is otherwise in the action
instituted by a banker for the
balance of an account, for the
banker is compelled to include a
set off in his action and make
express recognition of it in his
formula, so much so that he must
allow for any set off from the first,
his Intentio only claiming the
balance. Thus if he owes ten
thousand sesterces to Titius, and
Titius owes him twenty thousand,
his Intentio runs as follows : ' If
it be proved that Titius owes him
ten thousand sesterces more than
he owes Titius.'
§65. Likewise the purchaser of
an insolvent debtor's estate must
when he sues do so .with a de-
duction in his formula, that is in
the condemnatio only require the
512
DE ACTIONIBVS
[iv. §§ 61-68.
cem ei bonorum emptor de-
fraudatoris nomine debet.
§ 66. Inter conpensationem
autem quae argentario oppo-
nitur, et deductionem quae ob-
icitur bonorum emptori, ilia
differentia est, quod in conpen-
sationem hoc solum uocatur,
quod eiusdem generis et naturae
est: uelutipecuniacumpecunia
conpensatur, triticum cum tri-
tico, uinum cum uino ; adeo ut
quibusdam placeat non omni
modo uinum cum uino aut
triticum cum tritico conpen-
sandum, sed ita si eiusdem
naturae qualitatisque sit. in
deductionem autem uocatur et
quod non est eiusdem generis.
itaque (s£ } ; si uero pecu-
niam petat bonorum emptor et
inuicem frumentum aut uinum
is debeat, deducto quanti id erit
in reliquum experitur.
§ 67. Item uocatur in de-
ductionem et id quod in diem
debetur ; conpensatur autem
hoc solum quod praesenti die
debetur.
§ 68. Praeterea conpensatio-
nis quidem ratio in intentione
ponitur; quo fit, ut si facta
conpensatione plus nummo uno
intendat argentarius, causa ca-
dat et ob id rein perdat. de-
ductio uero ad condemnationem
ponitur, quo loco plus petenti
periculum non interuenit ; uti-
que bonorum emptore agente,
qui licet de certa pecunia agat,
incerti tamen condemnationem
concipit.
defendant to pay what he owes
after deduction of what is due to
him in turn from the purchaser
as representing the debtor who
has failed.
§ 66. Between the set off which
is made against the claim of the
banker and the deduction from
the claim of the purchaser of an
insolvent's estate there is this
difference, that set off is confined
to claims of the same genus and
nature ; money, for instance, is
set off against money, wheat
against wheat, or wine against
wine ; and some even hold that
not every kind of wine or every
kind of wheat may be set off
against wine and wheat, but only
wine and wheat of the same
nature and quality. Deduction,
on the contrary, is made of a debt
of a different genus. Thus, if a
purchaser of an insolvent's estate
sues for money owed to the in-
solvent a person to whom he
himself, as the insolvent's suc-
cessor, owes corn or wine, he has
to deduct the value of the corn
or wine and bring the action only
for the residue.
§ 67. Again, deduction is made
of debts not yet due, set off only
of debts already due.
§ 68. Again, set off is inserted
in the Intentio, and if the In-
tentio of the banker is one sesterce
more than the balance, he loses
his present cause and on this
account also his future claim ;
whereas the deduction is intro-
duced in the Condemnatio, where
an excessive claim is not hazardous;
especially as the purchaser of an
insolvent's estate, though the debt
he claims is certain, draws up
the condemnatio for an uncertain
amount.
iv. §§61-68.] COMPENSATIO ET DEDVCTIO 513
§ 61. Compensatio or cancelling of cross claims by setting off one
against another (compensatio est debiti et crediti inter se contributio,
Dig. 16, 2, 1) was originally limited to claims of the parties growing
out of the same ground (ex eadem causa, § 61), hence there could be
no set-off in an action for enforcing a unilateral obligation ; but the
transaction must be one that generated either a bilateral obligation
and gave to both parties an actio direeta, e;g. emptio venditio, — or
a semi-bilateral obligation, giving to one party actio direeta and to
the other actio contraria, e.g. commodatum. In other words, Com-
pensatio was not possible in actions stricti juris, such as condictio,
but confined to actions boriae fidei. The emperor Marcus Aurelius
allowed Compensatio to be urged against claims based on transactions
that could only generate unilateral obligations, and so made the
identity of title (eadem causa) unnecessary: in other words, he
admitted Compensatio in Condictiones or stricti juris actiones. (It
was merely by inadvertence that Justinian in compiling his own
Institutions out of those of Gaius retained the words ex eadem causa
in the definition of Compensation, Inst. 4, 6, 39. Savigny, § 45.)
In an actio bonae fidei, to which it had been previously limited,
Compensation of the defendant's counterclaim ex eadem causa would
not require to be commanded by an exceptio doli, but would be
included in the officium judicis ; i. e. could be made by the judex if
it seemed good to him (cf. § 63 as newly deciphered by Studemund,
liberum est tamen judici nullam omnino invicem compensationis rationem
lidbere) in virtue of the terms EX BONA FIDE contained in the
formula which gave him his commission. In an actio stricti juris,
after the rescript of Marcus Aurelius, the judex could be obliged
to make compensation by the Exceptio Doli mali, but only if the
exception was expressly inserted in the formula : Sed et in strictis
judiciis ex rescripto divi Marci, opposita doli mali exceptione, com-
pensatio inducebatur, Inst. 4, 6, 30. The effect of this change seems
to have been to establish Compensatio for the first time a& a definite
right of the defendant, which the judex must allow him to make use
of, and this may possibly be the meaning of the much controverted
phrase ' ipso jure compensari,' Inst. 4, 6, 30 ; Dig. 16, 2, 21 ; Cod.
4, 31, 14. Cf. Dernburg, Geschichte und Theorie der Kompensation,
p. 310 ; Pandekten, § 62, notes 13; 14.
The exception was of the form : Si in ea re nihil dolo malo Auli
Agerii factum sit neque fiat, § 119: and we find in the Digest a
definition of Dolus that seems intended to apply to a claim for Com-
pensation : Dolo facit qui petit quod redditurus est, Dig. 44, 4, 8.
Some writers hold that this exceptio empowered the judex, not to
make compensation but simply to give judgment against the plaintiff
on the ground of his making what according to the principles of bona
514 DE ACTIONIBVS [iv.§§ 61-68.
fides amounted to Plus petitio ; and they explain that this was not
so iniquitous as at first sight it may appear, as the loss of the action
would only be a penalty to the plaintiff for refusing to employ a
formula containing a Compensatio or Deductio, the usage of these
formulae being in effect generalized by the rescript of Marcus
Aurelius.
Vangerow, on the other hand, § 607, observes that we have no
evidence that an intentio modified by a Compensatio or Deductio was
ever employed by any plaintiff but the Argentarius and Bonorum
emptor: while we are expressly informed by Theophilus 4, 6, 30,
that the effect of Exceptio doli might be to diminish the condemnatio,
instead of the usual one of entirely absolving the defendant ; which
again is consistent with what the jurist Paulus says of the general
nature of exceptio: Exceptio est conditio quae modo eximit reum
condemnationi, modo minuit damnationem, Dig. 44, 1, 22. Probably
before the law of Marcus Aurelius the exceptio doli mali, when used
in this case, had not the effect of diminishing the condemnation, and
so did not admit the principle of set-off, but absolved the defendant
entirely. Cf. Sohm, § 89,
As Gaius flourished under Marcus Aurelius, and makes no mention
of his rescript, we must infer that it was issued after the publication
of his Institutes. To be capable of set-off against one another the
claims must be of the same kind — money against money, wheat
against wheat — and so especially of res fungibiles — and these claims
must be now due. But the defendant might set off obligatio naturalis,
which was not enforceable by action against obligatio civilis of the
plaintiff. Etiam quod natura debetur venit in compensationem,
Dig. 16, 2, 6. But claims originally different in kind may be set off
against one another, if they are reduced to a money value. And this
principle enabled Justinian to extend Compensation to Eeal actions,
Cod. 4, 31, 14; Inst. 4, 6, 30.
§§ 66-68. The balance for which the banker sued was not the
balance (deductio) of a Personal account, but the balance of one of
the Eeal accounts for corn, wine, oil, &c., into which the debtor's total
personal account was subdivided. The law courts, that is, took notice
of the customary practice of the book-keepers, and a question naturally
arose as to the extent to which a personal account could be subdivided.
Deductio of argentarius and bonorum emptor, as is seen by the text,
differs in principle from Compensatio, and between the deductio of
the two kinds of plaintiff, who had thus to sue, there are important
differences, especially in regard to the effect of not complying with
the requirement. The argentarius, as we are told, is bound to make
the deduction in the intentio of the formula, and so, if he claims more
than the correct balance, makes a plus petitio, thereby forfeiting his
iv. §§69-74 a.] ACT. ADIECTICIAE QVALITATIS
515
whole claim. But the deduction, by the bonorum emptor of the
claims of the debtors of the estate against the insolvent, is only
referred to in the condemnatio of the formula, and so as Gaius tells
us here, and also in § 57, is not attended with the same danger.
§ 68. It was the duty of the Argentarius to keep the accounts of
his customers : whereas the Bonorum emptor might well be ignorant
of the transactions of the insolvent. This explains the greater rigour
with which the Argentarius was treated.
A defendant was allowed to deduct his cross demand or independent
debt from the demand of the plaintiff by the English courts of
Equity, but not by the courts of Common law, until the Statutes
2 Greo. II, c. 22 ; 8 Geo. II, c. 24, introduced the plea of set-off into
the courts of Common law.
§ 69. Quia tamen superius
mentionem habuim us de actione,
qua in peculium filiorum fami-
lias seruorumque agitur, opus
est, ut de hac actione et de
ceteris, quae eorundem nomine
in parentes dominosue dari
solent, diligentius admoneamus.
Inst. 4, 7, pr.
§ 70. Inprimis itaque si ius-
su patris domimue negotium
gestum erit, in solidum praetor
actionem in patrem dominumue
conparauit ; et recte, quia qui
ita negotium gerit, magis patris
dominiue quam filii seruiue
fidem sequitur. Inst. 4, 7,. 1.
§ 71. Eadern ratione conpa-
rauit duas alias actiones, exer-
citoriam et instiforiam. tune
autem exercitoria locum habet,
cum pater dominusue filium
seruumue magistrum naui prae-
posuerit, et quid cum eo eius
rei gratia cui praepositus fuerit
[negotium] gestum erit. cum
enim ea quoque res ex uolun-
tate patris dominiue contrahi
uideatur, aequissimum esse
L
§ 69. As we have mentioned
[§ 61, Inst. 4, 6, 36] the action
brought against the Peculium of
filiusfamilias and of slaves, we
must explain more fully this and
the other actions by which fathers
and masters are sued on account
of their sons or slaves.
§ 70. Firstly, if it was at the
bidding of the father or master
that the plaintiff contracted with
the son or slave, the father or
master may be sued for the
whole amount of the debt con-
tracted, and rightly so, for in
this case the person with whom
the contract is made looks rather
to the credit of the father or
master than to that of the son
or slave.
§ 71. On the same principle
the praetor grants two other
actions, the actio exercitoria and
institoria, one on account of a
debt contracted by a ship-captain
(magister), the other on account of
a debt contracted by a manager of
a shop or business (institor). The
actio exercitoria lies against a
father or master who has appointed
a son or slave to be captain of a
ship, to recover a debt incurred
U
516
DE ACTIONIBVS
[iv. §§ 69-74 a.
uisum est in solidum actioTiem
<[in cum) dari. qui etiam,
licet extraneum quisque magis-
trum nau* praeposuerit siue
seruum siue liberum, tamen ea
praetoria actio in eum redditur.
ideo autem exercitoria actio
appellatur, quia exercitor uo-
catur is, ad quern cottidianus
nauis quaestus peruenit. insti-
toria, uero formula turn locum
habet, cum quis tabernae aut
cuilibet negotiation! filium ser-
uumue aut quemlibet extraneum
siue seruum siue liberum prae-
posuerit, et quid cum eo eius
rei gratia cui praepositus est
contractual fuerit. ideo autem
instiforia uocatitr, quia qui
tabernae praeponitur instifor
appellat^r. quae et ipsa for-
mula in solidum est.
Inst. 4, 7, 2.
§ 72. Praeterea tributoria
quoque actio in patrem domi-
numue constituta est, cum films
seruusue in peculiar^ merce
sciente patre dominoue nego-
tietur. nam si quid eius rei
gratia cum eo contracfatm fuerit,
ita praetor ius dicit, ut quid-
quid in his mercibus erit quod-
que inde receptum erit, id inter
(pair em) dominum^ue), si
quid ei debebitur, et ceteros
creditores pro rata portione
distribuatur. Inst. 4, 7, 3.
(fere 21 uersus in G legi
nequeunt)
by the son or slave on account of
the ship. As such a contract
seems also to be made with
the consent of the father or
master, it has appeared most
equitable that an action should
be given to make him liable for
the whole debt. But still further
even if a man appoint another
person's slave or a freeman over
his ship, he may nevertheless be
sued by this praetorian action.
The action is called Exercitoria
because exercitor signifies a per-
son who takes the daily profits of
a ship. The formula Institoria
is applicable in the case of a man
appointing his son or slave or
another person's slave or a freeman
to manage a shop or any business
for him, should any debt be
contracted by such person on
account of that business. It is
called Institoria because a person
set over to manage a shop is
called Institor, and the action
is also brought to recover the
whole amount of the debt.
§ 72. Besides the above, an
action has also been established
called Tributoria, against a father
or a master of a slave, when their
son or slave carries on some
business with his Peculium with
the knowledge of his father or
master. For if any contracts are
made with them on account of
that business the praetor orders
that whatever capital belongs to
this business and any profits
made in it shall be distributed
between the father or master
and the other creditors in pro-
portion to their respective claims
against the son or slave, and since
the praetor permits the father or
master to effect the distribution,
this aetio tributoria is provided to
meet the case of a creditor com-
plaining that he has received less
than his share.
TV. §§ 69-74 a.] ACT. ADIECTICIAE QVALITATIS 517
§ 72 a. Praeterea introducta
est actio de peculio deque eo,
quod in rem domini uersum
erit, ut, quamuis sine uoluntate
domini negotium gestum erit,
tamen siue quid in rem eius
uersum fuerit, id totum prae-
stare debeat, siue quid non sit
in rem ^ems uersum, id eatenus
praestare debeat, quatenus pe-
culium patitur. In rem autem
domini uersum intellegitur,
quidquid necessario in rem eius
impendent seruus, ueluti si
mutuatuspecuniam creditoribus
eius soluerit aut aedificia ruen-
tia fulserit aut familiae fru-
mentum emerit uel etiam fun-
dum aut quamlibet aliam rem
necessariam mercatus erit. Ita-
que si ex decem ut puta aureis,
quos seruus tuus a Titio mutuos
accepit, creditor! tuo quinque
aureos soluerit, reliquos uero
quinque quolibet modo con-
sumpserit, pro quinque quidem
in solidum damnari debes, pro
ceteris uero quinque eatenus,
quatenus in peculio sit: ex
quo scilicet apparet, si toti
decem aurei in rem tuam uersi
fuerint, totos decem aureos
Titium consequi posse, licet
enim una est actio, qua de
peculio deque eo quod in rem
domini uersum sit agitur, tamen
duas habet condemnationes.
itaque iudex, apud quern de
ea actione agitur, ante dispicere
solet, an in rem domini uersum
sit, nee aliter ad peculii aesti-
mationem transit, quam si aut
nihil in rem domini uersum
intellegatur aut non totum.
Inst. 4, 7, 4.
§ 73. Cum, autem quaeritur,
quantum in peculio sit, ante
dfeducitur, quod patri domi-
§ 72 a. There has also been
instituted the action in respect
of Peculium (de peculio) and of
what has been converted to the
profit of the father or master (de
in rem verso), since notwith-
standing the fact that a contract
has been made without the
consent of the father or master,
yet if any portion has been
converted to his profit, he ought
to be altogether liable to that
amount ; or if no portion has
been converted to his profit, he
ought to be liable to the extent
of the peculium. Conversion to
his profit is understood to mean
any necessary expenditure by his
son or slave on his account, as
borrowing money with which
the son or slave pays his creditors,
repair of his falling house, pur-
chase of corn for his household
of slaves (familia), purchase of an
estate for him, or any other
necessary. So if out of ten
thousand sesterces which your
slave borrowed of Titius he paid
your creditor five thousand, and
spent the remainder in some
other way, you are liable for the
whole of the five thousand, and
for the remainder to the extent
of the peculium. If the whole
ten thousand was applied to your
profit you are liable for the whole.
And although the action in
respect of Peculium and of con-
version to profit is only one action,
nevertheless it has two separate
condemnations. Thus the judex
first looks to see whether there
has been a conversion to the profit
of the father or master, and does
not proceed to estimate the value
of the peculium unless there was
no such conversion or only a
partial conversion.
§ 73. In ascertaining the
amount of the peculium, deduction
first is ma"de of what the son or
518
DE ACTIONIBVS
[iv. §§69-74 a-
noue quique in eius potestate
sit a filio seruoue debetur, et
quod superest, hoc solum pecu-
lium esse intellegitur. ali-
quando tamen id, quod ei debet
films seruusue qui in potestate
patris dominiue sit, non dedu-
citur ex peculio, uelut si is cui
debet in huius ipsius peculio
sit. Inst. 1. c.
§ 74. Ceterum dubium non
est, quin et si, qui iussu patris
dominiue contraxit cuique ex-
ercitoria uel institoria formula
conpetit, de peculio aut de in
rem uerso agere possit. sed
nemo tarn stultus erit, ut qui
aliqua illarum actionum sine
dubio solidum consequi possi£,
in difficultatem se deducat pro-
band i habere peculium eum
cum quo contraxerit, exque eo
peculio posse sibi satisfieri, uel
id quod persequitur in rem pa-
tris dominiue uersum esse.
Inst. 4, 7, 5.
§ 74 a. la quoque, cui tribu-
toria actio conpetit, de peculio
uel de in rem uerso agere po-
test. sed huic sane plerumque
expedit hac potius actione uti
quam tributoria. nam in tri-
butoria eius solius peculii ratio
habetur, quod in his mercibus
est guibus negotiatur films ser-
uusue quodque inde receptum
erit ; at in actione (cZe peculioy
peculii totius. et potest quis-
que tertia forte aut quarta uel
etiamminore parte peculii nego-
tiari, maximam uero partem pe-
culii in aliis rebus habere ; longe
magis si potest adprobari, id
quod (dederit is qui cum filio
seruoue} contraxit in rem patris
dominiue uersurn esse, ad hanc
actionem transire debet ; nain,
slave owes to the father or master
or to a person in their power, and
the residue only is regarded as
peculium. Sometimes, however,
what the son or slave owes to
a person in the power of their
superior is not deducted, for
instance, if it is owed to a vicarius,
that is to a slave belonging to
the peculium of the son or slave.
§ 74. There is no doubt that
both a creditor who has con-
tracted at the bidding (jussu) of
the father or master with a son
or slave, and one who might
sue, by exercitoria or institoria,
may bring the action in respect
of the peculium or of conversion
to profit ; but no one would be
so foolish, who could recover the
whole by one of the former
actions, as to undertake the
trouble of proving the existence
of a peculium and that it was
sufficient in amount to satisfy
his claim, or that the transaction
had been for the benefit of the
father or master.
§ 74 a. A plaintiff who has
the actio Tributoria may bring
actio de peculio et in rem verso,
and will generallyfind it expedient
to do so ; for actio Tributoria
only relates to that portion of
the peculium which consists of
the trading capital and the profits
of the business with which the
son or slave traded, but other
actions extend to the whole
peculium ; and a man may trade
with only a third or fourth or less
part of his peculium and have
the greatest part of it invested in
other concerns. A fortiori, if the
plaintiff can prove that what he
gave the son or slave in fulfilment
of the contract was converted to
the profit of the father or master,
he should use this action, viz. de
peculio et in rem verso, instead of
iv. §§69-74 a.] ACT. ADIECTICIAE QVALITATIS 519
ut supra diximus, eadem formula the actio Tributoria ; for, as I said
et de peculio et de in rem uerso above, the same formula lies both
aoitur. Inst. 1. c. in respect of peculium and of
what has been converted to uses.
§ 71. The term Institor includes any one set over a business —
cuicumque negotio praepositus sit institor recte appellabitur — and
so a banker (mensae praepositus), bailiff (agris colendis), foreman of
a trade (mercaturis), bagman (sed etiam eos institores dicendos
placuit, quibus vestiarii vel lintearii dant vestem circumferendam
et distrahendam, quos vulgo circitores appellamus, Dig. 1 4, 3, 5), and
any similar agent, of whatever age or sex (nam et plerique pueros
puellasque tabernis praeponunt, Dig. 14, 3, 8).
It seems probable that the actio exercitoria and institoria were first
granted by the praetor in the common case of the magister or institor
being a son or slave of his employer, when a third party contracting
with them would either have no remedy at all, or in respect of the
filius familias one which would often be ineffective) and that they
were afterwards extended to cases where the magister or institor were
free persons and slaves, extraneous to the family of the employer.
The liability of the shipowner (exercitor) and of the master
(dominus) on account of the contracts of the free captain (magister),
and of the free manager, overseer, factor (institor) made within
the scope of their employment, was the germ or first manifesta-
tion of the institution of contractual Agency, an institution that
did not reach its complete development in Eoman jurisprudence.
For in this system an agent could not be a mere instrument of
acquiring a contractual obligation for his employer, but was regarded
as being himself a party to any contract he concluded on account of
another. Thus the liability of the exercitor or dominus existed
alongside or in addition to that of the magister or institor.
The term actiones adjecticiae qualitatis is used by modern com-
mentators on Eoman law to denote action by which this kind of
liability was enforced, because of the Adjectio or additional clause
which was introduced in their formula. By the civil law, as we
have noticed, the inferior could not bind the superior, i.e. deteriorate
his condition even with the consent of the superior, Savigny, § 1 1 3.
But the Praetor besides the actio directa (empti, locati, &c.), which
lay against the inferior, granted similar actions with a modified
formula (actio empti de peculio, &c.) against the superior. They are
six in number : Quod jussu, Exercitoria, Institoria, De peculio, De in
rem verso, Tributoria. In the formula for De peculio, and De in
rem verso (one formula with a double condemnatio), the adjectio was
annexed to the condemnatio with a taxatio clause limiting the
damages either to the peculium or to the amount of benefit which
the defendant had derived from the transaction in question. Keller.
520 DE ACTIONIBVS [iv. §§ 69-74 a.
Litis Contestatio, § 50 (cf. Lenel, p. 225), supposes that the following
may have been its simplest form : Maevius judex esto. Quod Titius
Seio fih'ofamilias mensam argenteam commodavit, qua de re agitur,
quidquid ob earn rem Seium Titio dare facere oportet ex fide bona, ejus
judex Gaium patrem, dumtaxat De peculio aut Quod in rem Gaii patris
versum est, condemnato. In Quod jussu, Exercitoria, and Institoria,
the Adjectio was apparently a part of the demonstratio, something
corresponding to a demonstratio being required even where the
action was one de certa pecunia or de certa re. Keller suggests
the following formula: Quod jussu Gaii patris Seius filiusfamilias
a Titio hominem emit, quidquid ob earn rem Seium Titio dare facere
oportet ex fide bona, id Gaium patrem condemna. In all of them
the agent alone was mentioned in the intentio, § 34 comm., the
condemnation being directed against the person of the principal. Cf.
Lenel, § 206. We have not sufficient data for determining the nature of
the formula in Tributoria. The knowledge of the father, the inadequate
distribution, the limitation of liability to the merx peculiaris, would
seem to require an Adjectio to all three parts of the formula.
By the combination in one formula of the actions De peculio and
De in rem yerso, the superior could be successively sued on two
grounds. If the actions had been distinct, then, as their intentio
must have been identical, Litis Consumptio would have hindered
their successive institution.
The agent and principal were cprreal debtors, at least when the
agent was a free person, 3 § 110 comm., and against whichever an
action was brought, the intentio averred the debt of the agent, so that
on Litis Contestatio against either, the other was discharged by Ees
in judicium deducta. To remedy the injustice in such cases Justinian
enacted that bringing an action against one correal debtor did not
consume the right of action against the other. Cod. 8, 40, 28.
The actio de in rem verso, given against the paterfamilias or
dominus, if a transaction entered into by a person in their power,
though they had not authorized it, turned to their profit (si in rem
ejus versum est), is based on the principle of the condictio, as e.g. of
the condictio indebiti, that where the property of one person is
increased without any adequate legal ground (sine causa) at the
expense of another, the latter can claim restitution. The actions de
peculio and tributoria, which had the peculium or the merx peculiaris
of the son or slave for their object, show that while the peculium
of the subordinate members of the family was legally the property of
the head, it was recognized by the law for some purposes as if it
were the de facto property of the son or slave.
Thus obligations between them and their superior, which were
tunenforceable by action (obligationes naturales), had to be taken into
iv. §§ 75-81.] DE NOXALIBVS ACTIONIBVS
521
account by the judex in the distribution among creditors of the
peculium, or of that part of it, which was appropriated to trade.
§ 75. Ex malefims filiorum
familias seruorumque, ueluti si
furtum fecerint aut iniuriain
commiserint, noxales actiones
proditae sunt, uti liceret patri
dominoue aut litis aestima-
tionem sufferre aut noxae de-
dere. erat enim iniquum ne-
quitiam eorum ultra ipsorum
corpora parentibus dominisue
damnosam esse. Inst. 4, 8, pr.
§ 76. Constitutae sunt autem
noxales actiones aut legibus
aut edicto praetoris: legibus,
uelut furti lege xn tabularum,
dainni iniuriae lege Aquilia ;
edicto praetoris, uelut iniuria-
rum et ui bonorum raptorum.
Inst. 4, 8, 4.
§ 77. Omnes autem noxales
actiones c&put secuntur. nam
si filius tuus seruusue noxam
commiserit, quamdiu in tua
potestate est, tecum est actio ;
si in alterius potestatem per-
uenerit, cum illo incipit actio
esse ; si sui iuris coeperit esse,
directa actio cum ipso est, et
noxae deditio extinguitur. ex
diuerso quoque directa actio
noxalis esse incipit. nam si
pater familias noxam commi-
serit, et is se in adrogationem
tibi dederit aut seruus tuus esse
coeperit, {quod) quibusdain
casibus accidere primo corn-
mentario tradidimus, incipit
tecum noxalis actio esse quae
ante directa fuit. Inst. 4, 8, 5.
§ 78. Sed si filius patri aut
seruus domino noxam commi-
§ 75. For a delict, such as theft
or outrage, committed by a son
or slave, a noxal action lies
against the father or master, who
has the option of either paying
the damages assessed or sur-
rendering the delinquent. .For
it is not just that the misdeed of
a son or slave should involve the
father or master in any detriment
beyond the loss of his body.
§ 76. Noxal actions were intro-
duced partly by statute, partly by
the edict of the praetor : by statute,
for instance the action for theft
by the enactment of the Twelve
Tables, and the action for injury
to property by the lex Aquilia ; by
the edict, for instance theactionfor
outrage (injuriarum) and the action
for rapine.
§ 77. All noxal actions are
said to follow the person of the
delinquent. Accordingly if your
son or slave has done a wrong
while he is in your power, an
action lies against you ; if he
falls under the potestas, patria or
dominica, of another person, an
action lies against his new
superior: if he becomes his own
master (sui juris), a direct action
lies against the delinquent him-
self, and the noxal action is ex-
tinguished. Conversely, a direct
action may change into a noxal
one : thus if a paterfamilias has
committed a delict, and then has
madehimself your son by adrogatio
or having been a free man has
become your slave, as I showed
in the first book might happen
in certain circumstances, a noxal
action lies against you in place
of the direct action which formerly
lay against the delinquent.
§ 78. But no action lies for
an offence by a son or slave
522
DE ACTIONIBVS
[iv. §§ 75-81.
serit, nulla actio nascitur ; nulla
enim omnino inter me et eum
qui in potestate mea est obliga-
tio nasci potest. ideoque etsi
in alienam potestatem perue-
nerit ant sui iuris esse coeperit,
neque cum ipso neque cum eo
cuius nunc in potestate est agi
potest. unde quaeritur, si alie-
nus seruus filiusue noxam com-
miserit mihi, et is postea in mea
esse coeperit potestate, utrum
intercidat actio an quiescat.
nostri praeceptores intercidere
putant, quia in eum casum
deducta sit, in quo consistere
non potuerit, ideoque, licet
exierit de mea potestate, agere
me non posse ; diuersae scholae
auctores, quamdiu in mea po-
testate sit, quiescere actionem
putant, qum ipse mecum agere
non possum, cum uero exierit
de mea potestate, tune earn
resuscitari. Inst. 4, 8, 6.
§ 79. Cum autem filius fami-
lias ex noxali causa mancipio
datur, diuersae scholae auctores
putant ter eum mancipio dari
debere, quia lege xii tabularum
cautum sit, (vie aliter filius de
potestate patris} exeat, quam si
ter fuerit mancipatus ; Sabinits
et Cassius ceterique nostrae
scholae auctores sufficere unam
rnancipationem crediderunt, et
illas tres legis xn tabularum ad
uoluntarias mancipationes per-
tinere.
§ 80. Haec ita de his personis
quae in potestate (sunt), siue
ex contrajctu siue ex malencio
earum — . quod uero ad eas \
personas quae in manu manci-
pioue sunt < — ), ita ius dici-
committed against his father or
master ; for between me and a
person in my power no obligation
is possible ; and, consequently, if
he passes into the power of
another, or becomes his own
master (sui juris), neither he
himself in the one case nor the
person in whose power he now is
in the other can be sued. Hence it
has been asked whether, if another
man's son or slave has wronged
me and subsequently passes into
my power, the action is in con-
sequence extinguished, or is only
in abeyance. Our school main-
tains that the action is extin-
guished, because a state of cir-
cumstances has arisen in which
an action is impossible, and
therefore if the delinquent pass
again out of my power I have no
action. The other school main-
tains that while he is in my power
the action is only in abeyance,
because I cannot bring an action
against myself, but that it revives
when he passes out of my power.
§ 79. When a filiusfamilias is
conveyed by mancipation to the
injured party in a noxal action,
the other school hold that he
ought to be mancipated three
times, because the law of the
Twelve Tables provides that a
son cannot pass out of the power
of the father unless he is three
times mancipated. Sabinus and
Cassius and the other authorities
of my school hold that a single
mancipation is sufficient, and sup-
pose that the three conveyances of
the Twelve Tables are only re-
quired in voluntary mancipations.
§ 80. So much for the contracts
and delicts of persons under the
power of a father or master. As
to persons subject to manus or
mancipium, when they are sued
for contracts, unless they are de-
iv. §§ 75-81.] DE NOXALIBVS ACTIONIBVS 523
tur, ut cum ex contr&ctu earum fended against the whole damages
agatur, nisi ab eo cuius iuri by the superior to whom they are
subiectae sint in solidum defen- subject, the goods which would
dantur,bonaquae earum futura have belonged to them but for
forent, si ems iuri subiectae their subjection are ordered by
non essent, ueneant. sed cum the praetor to be sold. But when
rescissa capitis demiinutione their change of status is supposed
cum Us imperio continent* to be rescinded and an action is
. -j . . . , f brought resting on the praetor s
laicw agi ut , — • executive supremacy (iudicium
(13 uersus in C legi nequeunt) d imperio continetur). . . .
xii ta-
bularum 1
(7 uersus in C legi nequeunt}
§81. Quid ergo estl § 81. But though I said that
diximus — non permissum the surrender of a dead man was
fuerit ei mortuos homines de- not allowed yet if the delinquent
dere, tamen etsi quis eum de- died a natural death and the body
deritqui fato suo uita excesserit, is surrendered by the person sued
aeque liberator. on h.is acc<>unt in a noxal action,
the judgment is satisfied.
§ 77. Gaius explained the various modes by which a man might
lose his freedom, 1 § 160. A person who fraudulently allowed him-
self to be sold with the view of sharing the purchase money, Inst.
1, 3, 4, a freedman ungrateful to his patron, Inst. 1, 16, 1, a woman
who persisted in intercourse with a slave without the permission of
the master, all forfeited their freedom, the last by a Senatuscon-
sultum Claudianum which was repealed by Justinian, Inst. 3, 12, 1.
In the law mentioned by Gaius, 1. c., a man who failed to register
himself at the census (incensus) lost his freedom ; and by the Twelve
Tables the fur manifestus and insolvent debtor were assigned (addicti)
to the injured party, though, apparently, 3 § 189, not reduced to slavery.
§ 78. Justinian decides in favour of the Sabinians, Inst. 4, 8, 6,
that the action for the delict of a slave is extinguished, without
possibility of future revival, when the delinquent slave comes into
the power of the person aggrieved.
§§ 80, 81. As to the probable contents of the lacuna, cf. Krueger
and Studemund's Notes. The death of a delinquent slave before litis
contestatio extinguished the liability of the master. The Autun
fragments of interpretation of Gaius, which have recently been dis-
covered (see Krueger's Edition of these Fragments in Krueger and
Studemund's Gaius, 4th ed., App. p. xl, &c.), contain the following:
Sed interest, utrum serui filiiue nomine noxalis actio propo[natur
an] animalium ; nam si serui filiiue nomine condemnatus fuit
do[wmws uel] pater poe*** in noxam dare etiam mortuum condemn —
524 DE ACTIONIBVS [iv. §§ 82-87.
noxali actione potest seruum etiam mortuum in noxam dare. [Et-
non solum si] totum corpus det, liberatur, sed etiam si partem aliquam
corporis. denique tr[actatur de] capillis et unguibus, an partes cor-
poris sint. quidam enim dicunt [ — Jjtationi foris
posita animal m[or£m/w]l dedi non potest.
Quae ratio est, ut serui mortui etiam dedantur? uoluere [ ]
| imponere seruis uel filiis, ut delinquentes semet t[ ] |
uel potestatem dominorum ***, namque hoc uolebant liberari a
dom[— — ]|uus delinquebat, non poterat dare in usum aut reddere,
dabat [ wo]|xam . Ergo cum praetor corpus te dedere
dom[ ] | parentem putes - iure uti t[ cZo]|mino uel
parent! etiam occidere eum et mortuum dedere d[ ] |
patria potestas potest n[ ] | cum patris potestas talis est, ut
habeat uitae et necz's pot[estatem]. De filio hoc tractari crudele est,
sed ********* non est **n post r[ |dere, sed est hoc *** iure aut
*** quod praebebit lex xn tabularum. sed deferre hoc [ ] | debet
propter calumriiam.
Ergo ideo interest mortuum dedere [ — ]|ter animalibus nee est *
nisi *****ctio** ponis his quae ratione \_carenf],
It would seem from the above that the dead body of a delinquent
son or slave, or part of it, might be surrendered in satisfaction to
the plaintiff, but not that of an animal which had caused injury to
another (pauperies), though it is a question whether the noxal liability
would continue if the son or slave were killed by the head of the house-
hold in the exercise of the jus vitae necisque. We know that the master
of a slave did not escape such liability by his voluntary manumission
(on the primitive conception of noxal liability, cf. Holmes, Common
Law, chap. I).
As the Eomans became more civilized the noxal surrender of a son
or daughter by the parent became repugnant to public feelings, and
Justinian (Inst. 4, 8, 7) speaks of it as a thing of the past.
Mischief (pauperies) occasioned by an animal might by a law of
the Twelve Tables be atoned for by noxae deditio, Inst. 4, 9, and is
probably the subject of the lacuna in the text.
§ 82. Nunc admonendi su- § 82. A man may sue either on
mus agere nos aut nostro no- his own account or on account of
mine aut alieno, ueluti cogni- another as his cognitor, procura-
torio, procuratorio, tutorio, tor> guardian (tutor), or curator,
curatorio,cumolim,quotempore whereas in the days of statute-
legis actiones in usu fuissent, process a man could only sue on
alieno nomine agere non liceret, account of another m certain
praeferquam ex ce?iis causis. 'es'
Inst. 4, 10, pr.
§ 83. Cognitor autem certis § 83. A cognitor for a cause is
iv. §§82-87.] DE HIS PER QVOS AGERE POSSVMVS 525
uerbis in litem coram aduer-
sario substituitur. nam actor
ita cognitorem dat QVOD EGO A
TE uerbi gratia FVNDVM PETO,
IN EAM REM L. ' TITIVM TIBI
COGNITOREM DO ; aduersarius
ita QVIA TV A ME FVNDVM PETIS,
IN EAM (flEJf) TIBI P. MEVIVM
COGNITOREM DO. potesfc ut
actor ita dicat QVOD EGO TECVM
AGERE VOLO, IN EAM REM COGNI-
TOREM DO, aduersarius ita QVIA
TV MECVM AGERE VIS, IN EAM
EEM COGNITOREM DO. nee in-
terest, praesens an absens co-
gnitor detur; sed si absens
datus fuerit, cognitor ita erit,
si cognouerit et susceperit offi-
cium cognitoris.
§ 84. Procurator uero nullis
certis uerbis in litem substitui-
tur, sed ex solo mandate et
absente et ignorante aduersario
constituitur. quin etiam sunt
qui putant eum quoque procu-
ratorem uideri, cui non sit man-
datum, si modo bona fide ac-
cedat ad negotium et caueat
ratam rem dominum habitumm;
quamquamet illecuimandatum
(esty plerumque satisdaredebet,
quia saepe mandatum initio
litis in obscuro es£ et postea
apud iudicem ostenditur.
Inst. 4, 10, 1.
§ 85. Tutores autem et cura-
tores quemadmodum consti-
tuantur, primo commentario
rettulimus. Inst. 4, 10, 2.
§ 86. Qui autem alieno no-
appointed by a set form of words
in the presence of the adversary.
The form in which the plaintiff
appoints a cognitor is the follow-
ing : ' Whereas I sue you for, say,
an estate, in that matter I appoint
Lucius Titius as my cognitor;'
the defendant thus : ' Whereas
you sue me for an estate, in that
matter I appoint Publius Maevius
as my cognitor.' Or the plaintiff
may use the words : ' Whereas I
intend to sue you, in that matter
I appoint Lucius Titius as my
cognitor;' and the defendant
these : ' Whereas you intend to
sue me, in that matter I appoint
Publius Maevius as my cognitor.'
It is immaterial whether the per-
son appointed cognitor is present
or absent ; but if an absent per-
son is appointed, he is only cog-
nitor if he consents and under-
takes the office.
§ 84. A procurator is substi-
tuted in a suit for the principal
without using any particular form
of words, but simply by an in-
formal mandate, and even in the
absence and without the know-
ledge of the other party to the
action. According to the opinion
of some, a person may even be-
come a procurator without a
mandate if he undertakes the
office in good faith and engages
that the principal will ratify his
proceeding. Although he who is
acting under a mandate is also as
a rule bound to give this security,
the fact that he has a mandate
being often concealed in the
initial stage of the suit, and only
eomingto light subsequently when
the parties are before the judge.
§ 85. How guardians and cura-
tors are appointed has been ex-
plained in the first book.
§ 86. He who sues on account
526
DE ACTIONIBVS
[iv. §§82-87.
mine agit, intentionem quidem
ex persona domini sumit, con-
demnationem autem in suam
personam conuertit. nam si
uerbi gratia L. Titius {pro}
P. Meuio agat, ita formula con-
Cipitur SI PARET N. NEGIDIVM
P. MEVIO SESTERTIVM X MILIA
PAKE OPORTERE, IVDEX N. NEGI-
DIVM L. TITIO SESTERTIVM X
MILIA CONDEMNS. SI NON
PARET, ABSOLVE; in rem quo-
que si agat, intendit P. MEVII
REM ESSE EX IVRE QVIRITIVM,
et condemnationem in suam
personam conuertit.
of another names the principal in
the intentio and himself in the
condemnatio. If, for example,
Lucius Titius sues for Publius
Mevius, the formula runs thus :
'If it be proved that Numerius
Negidius ought to pay to Publius
Mevius ten thousand sesterces,
do thou, judex, condemn Nume-
rius Negidius to pay to Lucius
Titius ten thousand sesterces ; if
it be not proved, absolve him.'
In a real action the thing is
affirmed in the intentio to be the
property of Publius Mevius by
the law of the Quirites, and the
representative is named in the
condemnatio.
§ 87. When the defendant is
represented by a cognitor or pro-
curator in a personal action the
principal is named in the in-
tentio, and his representative
in the condemnatio. In a real
action neither the principal de-
fendant nor his representative is
named in the intentio, which
only affirms that the thing be-
longs to the plaintiff.
§ 87. Ab aduersarii quoque
parte si interueniat aliquis cum
quo actio constituitur, intendi-
tur dominum DARE OPORTERE,
condemnatio autem in eius
personam conuertitur qui iudi-
cium accipit ; sed cum in rem
agitur, nihil (in) intentions
facit eius persona cum quo
agitur, siue suo nomine siue
alieno aliquis iudicio interue-
niat ; tanturn enim intenditur
REM ACTORIS ESSE.
§ 82. If there is a genuine antithesis between agere suo nomine .
and alieno nomine, the procuratorium, tutorium, &c., nomen, which
is the alienum nomen with which the procurator or guardian sues,
must mean the name, not of the procurator or guardian, but of the
principal or ward. When a man sues suo nomine he uses his own
name in the intentio ; therefore it might at first sight be supposed,
that when a man sues procuratorio nomine he would use the pro-
curatorium nomen in the intentio : the name inserted in the intentio
by a procurator is of course however not the name of the procurator
but that of the principal, the name of the procurator being only in-
serted in the condemnatio, § 36. But Gaius is evidently using the word
' agere ' here, not for the claim as set out in the intentio, but in a
general sense. Statute-process was incapable of representation or
procuration (alieno nomine agere), because it could not be modified
for this purpose by the praetor ; that is to say, it could not as
in the formulary procedure frame a condemnatio, in which the
procurator's name was substituted for that of the principal.
iv. §§88-102.] DE SATISDATIONIBVS 527
Justinian enumerates the cases in which representation was per-
mitted in statute-process : Cum olim in usu fuisset alterius nomine
agere non posse, nisi pro populo, pro libertate, pro tutela : praeterea
lege Hostilia permissum est furti agere eorum nomine, qui apud
hostes essent aut rei publicae causa abessent quive in eorum cujus
tutela essent. et quia hoc non minimam incommoditatem habebat,
quod alieno nomine neque agere neque excipere actionem licebat,
coeperunt homines per procuratores litigare, Inst. 4, 10, pr. Earn
popularem actionem dicimus quae suum jus populo tuetur, Dig.
47, 23, 1. A popularis actio was one brought by a common informer
to recover a penalty. The informer enforced, not a private but a
public right, that is, sued as the procurator of the people ; and there-
fore an infamis, as he was disabled from being procurator, was in-
competent to prosecute in such an action. To public actions and
actions by an adsertor libertatis (see 1 § 17, comm.) Justinian adds,
as maintainable by a representative under the old jurisprudence,
actions on behalf of a ward. We have already mentioned, 1 §§ 142-
145, comm., that until the ward attained the age of seven, when he
ceased to be infans, the guardian had to bring actions for the ward ;
after the age of seven the ward maintained his own actions with the
sanction of the guardian, though sometimes the latter did so on his
behalf.
§ 84. A person who without a mandate undertook the defence of
an absent neighbour was called negotiorum gestor (Inst. 3, 27, 1) or
defensor, or procurator voluntarius. The employment of a cognitor,
from the necessity of appointing him in the presence of the adversary
and by a certain formula, was discontinued as inconvenient, and
Justinian only speaks of the procurator. Bethmann-Hollweg, vol. 3,
appendix 1, quotes from Symmachus the report of a case in which
the defendant objected to a procurator (exceptio invalidae procura-
tionis), and the plaintiff proved his appointment by production of a
document from the praetor's record office (ex actis praetoriis) at a late
stage of judicial proceedings. A procurator thus appointed by
protocol was called procurator praesentis, or apud acta factus, and
was to some extent in a similar position to that of a cognitor. Keller,
Civil Process, § 52.
§ 88. Videamus nunc quibus § 88. We next inquire under
ex causis is cum quo agitur uel what circumstances the plaintiff
hie qui agit cogatur satisdare. or defendant is required to give
Inst. 4, 11, pr. security.
§ 89. Igitur si uerbi gratia § 89. If I sue you in a real
in rem tecum agam, satis inihi action you must give me security,
dare debes ; aequum eniin ui- For as you are permitted during
sum est (te) ideo quod interea the suit to retain possession of a
528
DE ACTIONIBVS
[iv. §§88-102.
tibi rem, quae an ad te pertineat
dubium est, possidere conceditur,
cum satisdatione cauere, ut si
uictus sis nee rem ipsain resti-
tuas nee litis aestimationem
sufferas, sit mihi potestas aut
tecum agendi aut cum sponso-
ribus tuis. Inst. 1. c.
§ 90. Multoque magis debes
satisdare mihi, si alieno nomine
indicium accipias. Inst. 1. c.
§ 91. Ceterum cum in rem
actio duplex sit, aut enim per
formulam petitoriam agitur aut
per sponsionem, siquidem per
formulam petitoriam agitur, ilia
stipulatio locum habet quae
appellatur IVDICATVM SOLVT, si
uero per sponsionem, ilia quae
appellatur PRO PRAEDE LITIS
ET YINDTCIARVM. Inst. 1. fi.
§ 92. Petitoria autem formula
haec est, qua actor intendit
REM SVAM ESSE.
§ 93. Per sponsionem uero
hoc modoagimus : prouocamus
aduersarium tali sponsione si
HOMO QVO DE AGITVR EX IVRE
QVIRITIVM MEVS EST,SESTERTIOS
XXV NVMOS DARE SPONDES ? ;
deinde formulam edimus; qua
intendimus sponsionis suminam
nobis dart oportere; qua for-
mula ita demum uincimus, si
probauerimus rem nostram
esse.
§ 94. Non tamen haec summa
sponsionis exigitur. non enim
poenalis est, sed praeiudicialis,
et propter hoc solum fit, ut per
earn de re iudicetur. unde
etiam is cum quo agitur non
restipulatur. ideo autem ap-
pellata est PRO PRAEDE LITIS
VINDICIARVM stipulatio, quia
thing to which your title is doubt-
ful, it is fair that you should give
me security with sureties so that
if judgment goes against you and
you refuse to restore the thing or
to pay its value I may have the
power of proceeding against you
or your sponsors.
§ 90. And there is all the more
reason that you should give se-
curity if you are only under-
taking the action as the repre-
sentative of another.
§ 91. A real action is either
commenced by a petitory formula
or by a sponsio : if the plaintiff
proceeds by petitory formula,
recourse is had to the stipulation
known as security for satisfaction
of judgment ; if he proceeds by
sponsio, the stipulation employed
is known as security for the thing
in dispute and for mesne profits.
§ 92. The Intentio of a petitory
formula containing the assertion
that the thing belongs to the
plaintiff.
§ 93. But in a proceeding by
sponsio we challenge the other
party to such a wager as follows :
* If the slave in question belongs
to me by the law of the Quirites,
do you promise to pay me twenty-
five sesterces ? ' and we then de-
liver a formula in which we sue
for the sum named in the wager,
but we only obtain judgment by
this formula if we prove that the
thing belongs to us.
§ 94. But the sum named in
the wager in this case is not ex-
acted, for it is not really penal,
but prejudicial, and is used merely
as a device for instituting a trial
of ownership. Hence, the de-
fendant does not enter into a
counter stipulation with the
plaintiff. But the stipulation in
iv. §§88-102.] DE SATISDATIONIBVS
529
in locum praedium successit,
qui olim, cum lege agebatur,
pro lite et uimliciis, id est pro
re et fructibus, a possessore
petitori dabantur.
§ 95. Ceterum si apud cen-
tumuiros agitur, summam spon-
sionis non per formulam peti-
mus, sed per legis actionem ;
Sacramento enim reum prouo-
camus ; eaque sponsio sestertium
cxxv nummum fi£ scilicet, prop-
ter legem Crepereiam.
§ 96. Ipse autem qui in rem
agit, si suo nomine agat, satis
non dat. Inst. 1. c.
§ 97. Ac nee si per cognito-
rem quidem agatur, ulla satis-
datio uel ab ipso uel a domino
desideratur. cum enim certis
et quasi sollemnibus uerbis in
locum domini substituatur co-
gnitor, merito domini loco ha-
betur. Inst. 1. c.
§ 98. Procurator uero si agat,
satisdare iubetur ratam rem
dominum habiturum ; pericu-
lum enim est, ne iterum domi-
nus de eadem re experiatur.
quod periculum (TIOTI) inter-
uenit, si per cognitorem actum
fuerit, quia de qua re quisque
per cognitorem egerit, de ea non
magis amplius actionem habet,
quam si ipse egerit. Inst. 1. c.
§ 99. Tutores et curatores eo
* 9
modo quo et procuratores satis-
dare debere uerba edicti fa-
ciunt ; sed aliquando illis satis-
datio remittitur. Inst. 1. c.
§ 100. Haec ita, si in rem
the place of security for the thing
in dispute and for mesne profits
(pro praede litis et vindiciarum) is
so named because it was substi-
tuted for personal sureties (prae-
des) ; for in the days of statute-
process restitution of the thing
in dispute and the mesne profits
was secured to the claimant
(petitor) by the possessor giving
him such sureties.
§ 95. When, however, the case
is tried in the centumviral court
the sum of the wager is not sued
for by formula but by statute-
process. For then we challenge
the defendant by sacramentum,
and a sponsio of a hundred and
twenty-five sesterces is entered
into by virtue of the lex Cre-
pereia.
§ 96. But if a plaintiff in a
real action sues in his own name
he gives no security.
§ 97. And even if a cognitor
sues, no security is required either
from him or from his principal,
for the cognitor being appointed
by a fixed and, as it were, solemn
form of words in the place of the
principal, he is properly identified
with the principal.
§ 98. But if a procurator sues,
he is required to give security
for the ratification of his proceed-
ings by his principal, as otherwise
the principal might sue again on
the same claim, which he cannot
do after suing by a cognitor on
account of the acts of the latter
being regarded as his own.
§ 99. Guardians (tutores) and
curators are required by the edict
to give the same security as pro-
curators, but are sometimes ex-
cused.
§ 100. So much for real actions.
WHITTUCK
M m
530
DE ACTIONIBVS
[iv. §§ 88-102.
agatur; si uero in personam,
ab actoris quidem parte quando
satisdari debeat quaerentes,
eadem repetenms quae diximus
in actione qua in rem agitur.
Inst. I.e. 1.
§ 101. Ab eius uero parte
cum quo agitur, siquidem alieno
nomine aliquisinterueniat,omni
modo satisdari debet, quia nemo
alienae rei sine satisdatione de-
fensor idoneus intellegitur. sed
siquidem cum cognitore agatur,
dominus satisdare iubetur ; si
uero cum procuratore, ipse pro-
curator, idem et de tutore et
de curatore iuris est.
Inst. 4, 11, 1.
§ 102. Quodsi proprio nomine
aliquis iudicium accipiat in per-
sonam, certis ex causis satisdare
solet, quas ipse praetor signi-
ficat. quarum satisdationum
duplex causa est: nam aut
propter genus actionis satis-
datur, aut propter personam,
quia suspecta sit ; propter genus
actionis, ueluti iudicati depen-
siue aut cum de moribus mu-
lieris agitur ; propter personam,
ueluti si cum eo agitur qui de-
coxerit, cuiusue bona (a) cre-
ditoribus possessa proscriptaue
sunt, siue cum eo herede agatur
quern praetor suspectum aesti-
mauerit. Inst. 1. c.
In personal actions the plaintiff
is governed by the same rules in
respect of giving security as in
real actions.
§ 101. As regards the defendant,
if another person intervenes for
him in the action, security must
always be given, for no one is
considered to be a sufficient de-
fender of another without se-
curity ; but in a suit against a
cognitor it is the principal who
gives security, while in a suit
against a procurator it is the
procurator who gives it ; and this
same rule applies to guardians
and curators.
§ 1 02. But if a defendant accepts
process in his own name in a
personal action, he only gives
security in certain cases named
in the edict. These cases are
of two kinds, depending either
on the nature of the action or on
the suspicious character of the
defendant. The nature of the
action is the reason in a suit
against a judgment debtor, or a j
principal indebted to his surety,
or in an action (for dower) in
which the conduct of the wife
is in question. The suspicious
character of the defendant is the
reason if he has already made
away with his property, or if his
goods have been possessed or pro-
scribed for sale by his creditors,
or if an heir is sued whom the
praetor looks on as a suspect.
§ 88. In a real action the defendant was required to give security
that he would satisfy the judgment (satisdatio judicatum solvi) ; in
a personal, with a few exceptions, if he appeared in his own cause,
he was not required. Justinian relieved him of the necessity of
giving such security in real actions. But a defendant, whether in
a real or personal action, might be compelled either to promise or to
give security that he would appear and defend the action till it was
concluded (cautio judicio sisti). Inst. 4, 11, 2.
iv. §§88-102.] DE SATISDATIONIBVS 531
In the time of Graius, if the defendant in a real action refused to
give security judicatum solvi, the possession was transferred from
him to the plaintiff by the interdict Quern fundum, Quam here-
ditatem, or Quern usumfructum, as the case might be, and he was
reduced at least for some purposes to the position of plaintiff ; cf. Ulp.
Inst. Fragm. Vind. in Krueger, Jus Antejus. 2, 159, 'Some inter-
dicts may either initiate or restore possession, as the interdicts Quern
fundum and Quam hereditatem. For if I sue a person for land or
an heritage, and he refuses to give security, he is compelled to
transfer the possession to me whether I never before had possession,
or once had and afterwards lost possession ' ; and Ulpian, Fragmenta
Vaticana, 92, ' The plaintiff has a right to security in a real action for
a servitude as well as for a corporal thing, and therefore, analogous
to the interdict, Quern fundum, there is an interdict, Quern usum-
fructum, for the transfer of a usufruct ' ; cf. also Paulus, Keceptae
Sententiae, 1, 11, 1, 'In a demand of a heritage, security must be
given, or else possession is transferred to the demandant. If, how-
ever, the demandant refuse to give security, possession remains with
the possessor, for in equal circumstances law favours the possessor.'
Cf. Lenel, §248. 2, n.q.
The same principle may perhaps also have applied to Praedial
servitudes. If A asserted against B the Urban servitude altius non
tollendi (si ageretur, jus vicino non esse, aedes altius tollere), i.e. sought
by actio Confessoria of jus altius Non tollendi (with an intentio,
perhaps, in the following form r Si paret jus Numeric Negidio non esse
aedes altius tollendi invito Aulo Agerio) to restrain B from exercising
the indefinite powers of ownership by raising the height of his house,
B might decline to defend the action and thus avoid a judicial decision
as to the existence of the servitude ; but as a penalty for this he
would not be allowed afterwards to exercise his alleged right without
first proving before a tribunal the nullity of A's claim ; proving,
that is, either that A never had such a servitude over his house,
or that he, B, had extinguished it by acquisition of the counter-
servitude (libertatis usucapio). That is to say, being originally in
possession, or rather quasi-possession of the jus altius tollendi (for
servitudes are not, strictly speaking, subjects of possession), B was
deprived of this position ; and, if he afterwards wished to exercise his
right of building, had first to recover possession of it as plaintiff in
a suit : i. e. by actio Negatoria of jus Non altius tollendi, if he denied
that A as dominans ever enjoyed such a servitude, or by actio
Confessoria of jus altius tollendi, if he claimed as serviens to have
reacquired the freedom of his house by usucapio libertatis.
The penalty would only consist in an inversion of the order of
proof: B as plaintiff would have to prove his own proprietorship
M m 2
532 DE ACTIONIBVS [rv. §§ 88-102.
before A as defendant was put to prove the existence of the servi-
tude : whereas, if A had been plaintiff, A would have had to begin by
proving the existence of the servitude before B was put to his answer.
So vice versa : if B had originally wished to prove his right to
build as plaintiff, either in an actio Negatoria of jus Non altius
tollendi, or in an actio Confessoria of jus altius tollendi; and if
A had declined to defend either action by giving securities, &c. in
the course prescribed by law ; A would have been restrained from
afterwards interfering with B except as plaintiff in a suit in which
B was made defendant, Dig. 39, 1, 15. Cf. 2, §§ 1-14, §§ 28-39,
comm., §§ 1-9, comm.
At a later period, as we have seen, the cautio judicatum solvi was not
required from the defendant in a real action, and translatio possessionis
might be averted if the defendant merely gave the cautio judicio sisti.
The sum staked in the praedes sacramenti, which Gaius had told
us, § 14, was a thousand or five hundred asses, he now, § 95, defines
as one hundred and twenty-five sesterces.
The explanation of this is as follows : Originally the sestertius, as
the name implies, was two asses and a half, and the denarius ten
asses. Both the sestertius and the denarius were silver coins. In
the Second Punic War, about B. c. 217, in consequence of the insol-
vency of the State, the denarius was made equal to sixteen asses and
the sestertius remained, as before, one fourth of the denarius, that is,
became equal to four asses. One hundred and twenty-five sesterces,
therefore, were equal to five hundred asses. This change was brought
about by the lex Crepereia.
The Sponsio praejudicialis, though giving rise to a personal action
in form, might in effect be a means of deciding a real action. It re-
sembles somewhat the Feigned Issue or issue in a fictitious action on
a wager, whereby the Court of Chancery, before it had the power of
summoning a jury, might refer an issue of fact to trial by jury, or the
parties in a court of law by consent or by direction of some act of
parliament might determine some disputed right without the formality
of a regular action, thereby saving much time and expense ; see Black-
stone's Commentaries. In the Sponsio poenalis there was both a
sponsio and restipulatio, that is, both parties forfeited the penal sum
if they lost the action, and the penal sum might be serious, in an
action de pecunia certa credita being one third, and in an action de
pecunia constitute, being one half of the sum in dispute, § 171.
In the actio Sacramenti in rem and per Sponsionem two different
stipulations must be distinguished. In the Sacramentum there was
(A) the praedes sacramenti, and (B) the praedes litis et vindiciarum,
§ 16 ; in the actio in rem per Sponsionem there was (A) the sponsio
praejudicialis, and (B) the satisdatio pro praede litis et vindiciarum.
iv. §§ 88-102.] DE SATISDATIONIBVS 533
In the formula petitoria there was only one stipulation, (B) the satis-
datio judicatum solvi, corresponding to the second stipulation in the
Sacramentum and Sponsio. §§ 91, 93.
In the interdicts Uti possidetis and Utrubi, each party being origin-
ally both plaintiff and defendant, there were (A) two sponsiones and
two restipulationes for a penal sum, on which stipulations the
principal issue was founded : there was no security (B) exactly corre-
sponding to the Pro praede litis et vindiciarum, but the highest bidder
at the fructus licitatio must either enter into a fructuaria stipulatio,
§ 16, which in the event of his failing in the action he must forfeit,
besides having by the judicium Cascellianum or Secutorium, or action
for giving effect to the main decision, to hand over the possession and
mesne profits to the successful party ; or as an alternative, if he
refuses to enter into the fructuaria stipulatio, he is subject to the
judicium fructuarium, by which he is required to give the satisdatio
judicatum solvi, §§ 166-169.
§ 101. As a plaintiff's procurator could not bring to trial and con-
sume the plaintiff's right, he had to give cautio rem ratam dominum
habiturum : and as a defendant's procurator could not bring to trial
the defendant's obligation, he had to give security judicatum solvi.
§ 102. The husband sued for the dower of his divorced wife might
retain a portion on various grounds, of which Immorality was one,
Ulpian, Fragm., 6, 9, 11. ' Ketentions in the restitution of dower
are on account of children, immorality, expenditure, donation,
articles purloined by the wife. On account of children, if the fault
of the wife, or the father in whose power she is, occasioned the
divorce. Then a sixth is retained on account of each child, but not
more than three sixths altogether. For gross immorality a sixth is
retained, for slight immorality an eighth. Only adultery is gross
immorality.' (Cf. § 44, comm.)
Besides the forfeiture of vadimonium, fraudulent absconding
to avoid the summons to appear was an act of bankruptcy, or
motive for missio in possessionem. Praetor ait : Qui fraudationis
causa latitabit, si boni viri arbitratu non defendetur, ejus bona pos-
sideri vendique jubebo, Dig. 42, 4, 7, 1. ' If a debtor fraudulently
abscond, and no sufficient representative defends him, I will order
his goods to be possessed and sold.'
A heres might, on cause shown to the praetor, immediately after
his entry on the succession, be required by the creditors to give
security for the payment of their claims, with the alternative of
seizure and sale, though only on the ground of his being unlikely to
be able to satisfy them, § 102. But after a lapse of time it was
necessary to prove not only poverty, but fraudulent behaviour on
the part of the heres, Dig. 42, 5, 31.
534 DE ACTIONIBVS [iv. §§ 88-102.
The stipulatio judicatum solvi contained three clauses: Judi-
catum solvi stipulatio tres clausulas in unum collatas habet : de re
judicata, de re defendenda, de dolo malo, Dig. 46, 7, 6. 'The
stipulation judicatum solvi is composed of three clauses, for satis-
faction of the judgment, for defending the action, and for fraud.'
The action must be defended ' to the satisfaction of a reasonable man,'
which was interpreted to mean that, if a defensor appeared before the
judex, the second clause was not satisfied unless the defensor was
prepared to give further security judicatum solvi, Dig. 46, 7, 5, 3. 'A
defensor may prevent the stipulation taking effect if he defends " to
the satisfaction of an arbitrator," that is, with adequate security.'
Cf. Koby, 2. p. 384.
Justinian as a general rule relieved the defendant in any action
who appeared in his own person from the first and third clauses of
the security judicatum solvi, but not from the second. The vadi-
monium or cautio judicio sistendi, which originally, it seems, only
referred to adjourned appearances in jure, was at this period extended
to the judicia, and bound the defendant to appear before the judex
and remain to the end of the trial. If, then, in consequence of an
adjournment in jure, there had been a vadimonium between the
parties, no further stipulation would be necessary ; otherwise the
defendant would have had to •enter into the undertaking that
formed the second clause of the stipulation judicatum solvi, Inst.
4, 11, 2. 'This is not the present rule. The defendant now is not
required either in a real or personal action, if he appear in person, to
give security for satisfaction of the judgment, but only for his own
personal presence and continuance in court to the end of the trial.'
The procurator of the plaintiff appointed before the judex or in
the record office of the magistrate by memorandum (insinuatio) in the
register of his public proceedings (apud acta) was assimilated to the
cognitor whom he superseded, and was not required to give security;
otherwise he had to give security ratam rem dominum habiturum,
because Litis Contestatio by him operated no consumption.
The procurator of the defendant might either have himself to give
security, or his principal, as fidejussor of his procurator, gave security
judicatum solvi in his place, as in the case of the cognitor, which
might include a mortgage (hypotheca) of all his property. A
defensor (whether authorized or unauthorized) of the defendant must
find security judicatum solvi, because Litis Contestatio by him
operated consumption, § 101.
§ 103. Ornnia autem iudicia § 103. Actions are either statu-
aut legitimo iure consistunt aut table or are derived from magis-
imperio continentur. terial power.
iv. §§103-9.] IVDICIA LEGITIMO I VRE AVT IMPERIO 535
§ 104. Legitima sunt iudicia
quae in urbe Roma uel intra
primum urbis Romae miliarium
inter omnes ciues Romanes sub
uno iudice accipiuntur ; eaque
(e) lege lulia iudiciarm, nisi
in anno et sex mensibus iudi-
cata fuerint, expirant. et hoc
est quod uulgo dicitfur e lege
lulia litem anno et sex mensi-
bus mori.
§ 105. Imperio uero conti-
nentur recuperatoria et quae
sub uno iudice accipiuntur
interueniente peregrini persona
iudicis aut litigatoris. in ea-
dem causa sunt, quaecumque
extra primum urbis Romae mi-
liarium tarn inter ciues Roma-
nes quam inter peregrines
accipiuntur. ideo autem impe-
rio contineri iudicia dicuntur,
quia tamdiu ualent, quamdiu
is qui ea praecepit inaperium
habebit.
§ 106. Et siquidem imperio
continent! iudicio actum fuerit,
siue in rem siue in personam,
siue ea formula quae in factum
concepta est, siue ea quae in ius
habet intentionem, posteanihilo
minus ipso hire de eadem re agi
potest; et ideo necessaria est
exceptio rei iudicatae uel in
iudicium deductae.
§ 107. Si uero legitimo iudi-
cio in personam actum sit ea
formula quae iuris ciuilis habet
intentionem, postea ipso iure
de eadem re agi non potest, et
ob id exceptio superuacua est ;
si uero uel in rem uel in factum
actum fuerit, ipso iure nihilo
minus postea agi potest, et ob
§ 104. Statu table actions are
those that are instituted within
the city of Rome, or within an
area limited by the first milestone,
between Roman citizens, before a
single judex ; and these by the lex
Julia judiciaria expire in a year
and six months from their com-
mencement, unless previously de-
cided; which is the meaning of
the saying that by the lex Julia an
action dies in eighteen months.
§105. Magisterial power is the
source of those actions that are
instituted before recuperators, or
before a single judex, if the judex
or a party is an alien, or that are
instituted beyond the first mile-
stone from Rome, whether the
parties are citizens or aliens. They
are said to be derived from magis-
terial power because they can
only be prosecuted as long as
the praetor who delivered the
formula continues in office.
§ 106. To have sued in an
action derived from magisterial
power, whether real or personal,
and whether it had a formula of
fact (in factum) or an allegation
of law (in jus), is not by direct
operation of law a bar to the in-
stitution of a subsequent action
on the same question: and there-
fore a counteractive plea (excep-
tio) is necessary alleging that the
matter has been already decided
(res judicata)or that issue has been
joined upon it.
§ 107. But if a statutable action
in personam with an intentio of
civil law has been already
brought, a subsequent action on
the same question cannot by
direct operation of law be after-
wards maintained, and on this
account a counteractive plea ia
not required. But if a statutable
536
DE ACTIONIBVS
[iv. §§ 103-109.
id exceptio necessaria est rei
iudicatae uel in iudicium de-
ductae.
§ 108. Alia causa fuit olim
legis actionum : nam qua de re
actum semel erat, de ea postea
ipso iure agi non poterat ; nee
omnino ita, ut nunc, usus erat
illis temporibus exceptionum.
§ 109. Ceterum potest ex
lege quidem esse iudicium, sed
legitimum non esse ; et contra
ex lege non esse, sed legitimum
esse. nam si uerbi gratia ex
lege Aquilia uel Ollinia uel
Furia in prouinciis agatur, im-
perio continebitur iudicium ;
idemque iuris est et si Romae
apud recuperatores agamus, uel
apud unum iudicem inter-
ueniente peregrini persona; et
ex diuerso si ex ea causa, ex
qua nobis edicto praetoris datur
actio, Romae sub uno iudice
inter omnes ciues Romanos
accipiatur iudicium, legitimum
est.
action in rem or a statutable
action in personam with an in-
tentio of fact has been brought,
a subsequent action on the same
question may nevertheless by
direct law be maintained, and on
this account the counteractive
plea that the matter has been
already decided, or the plea that
there has been a previous joinder
of issue on it is necessary.
§ 108. It was otherwise for-
merly in the case of statute-
process, since in this procedure a
subsequent action on a question
which had already been the sub-
ject of an action was always
barred by direct operation of law,
nor were counteractive pleas
(exceptiones) at all in use in those
times, as they are now.
§ 109. An action may arise
from statute (ex lege) and yet not
be statutable (legitimum), or
statutable and yet not arising
from statute. For instance, an
action arising from the lex Aqui-
lia, or Ollinia, or Furia, if main-
tained in the provinces, is derived
from the power of the magistrate,
and so it is if instituted at Rome
before recuperators, or though
instituted before a single judex,
if the judex or a party is an
alien ; and, on the contrary, an
action given by the edict, if
maintained at Rome, before a
single judex, between Roman
citizens, is statutable (legiti-
mum).
The sum total of the powers of a magistrate, so far as he was
charged with the administration of justice, is described by the term
Officium jus dicentis. This officium contained two ingredients —
jurisdictio (in the narrower sense of the term) and imperium.
Of these two elements, Jurisdictio, which is the essential element
of the Officium jus dicentis, denoted the power (perhaps originally
vested in the Pontifex) of administering the civil law in the ordinary
course of procedure. It consisted chiefly in presiding over the pre-
liminary stages of litigation, and in the period of legis actiones was
iv. §§103-9.] IVDICIA LEGITIMO IVRE AVT IMPERIO 537
summed up in the utterance of the solemn words, Do, Dico, Addico ;
but in the formulary period it was principally performed, not by
oral utterances, but by the delivery of written documents (verbis con-
ceptis). In genuine litigation it was called jurisdictio contentiosa ;
in fictitious litigation, e. g. manumission by vindicta, alienation by in
jure cessio, it was called jurisdictio voluntaria.
Imperium as coupled with the administration of civil justice
(imperium quod jurisdiction! cohaeret, Dig. 1, 21, 1, 1), or as including
it (cui etiam jurisdictio inest, Dig. 2, 1, 3), was called imperium mix-
turn, as opposed to imperium merum, or gladii potestas, the admini-
stration of criminal justice. Imperium mixtum may be divided into
two functions, (i) cognitio extraordinaria and (2) actiones honorariae.
(1) Magistrates invested with imperium had the power of issuing
commands (jus decernendi) to which they enforced obedience by
fine (mulcta), distress (pignus), and imprisonment, and, as a pre-
liminary to issuing a command (decretum), of summoning parties
before them (vocatio), by means of a lictor, and conducting in
person an investigation of facts (causae cognitio). To these
functions of the praetor must be referred Restitutio in integrum,
Missio in possessionem, and other proceedings which the praetor
decided in person without reference to a judex, a form of procedure
which finally embraced all cases, superseding the ordo judiciorum or
formulary system.
(2) But even of suits belonging to the ordo judiciorum, which
conformed, that is, to the principle of appointing a judex, a portion
must be referred to the praetor's imperium. All the new actions,
unknown to the civil law, which the praetor invented when
executing the powers conferred upon him by the law of uncertain
date that introduced the formulary system, the lex Aebutia ; such
as fictitious actions and actions in factum ; in a word, all actiones
honorariae, were emanations of the praetorian imperium.
Jurisdictio is sometimes used in a wider sense as equivalent to
officium jus dicentis; and then Lex and Jurisdictio form an anti-
thesis similar to that which is formed by Jurisdictio in the narrower
sense and Imperium, the antithesis, namely, of Legislator and
Administrator.
This antithesis is the principle of many of the divisions or classi-
fications in Roman jurisprudence, and is expressed in various terms.
We have legitimum jus opposed to praetorium jus, § 34: legiti-
mum jus opposed to praetoris jurisdictio, § 111: jus civile
opposed to jus praetorium or jus honorarium, Dig. 1, 1, 7 : actio
legitima opposed to actio honoraria, Dig. 35, 2, 32, pr., and Collatio,
2, 5, 5 : actio legitima opposed to actio utilis, Dig. 39, 3, 22, 2 :
actio civilis opposed to actio honoraria (omnes actiones aut civiles
538 DE ACTIONIBVS [iv. §§ 103-109.
dicuntur aut honorariae), Dig. 44, 7, 25, 2, and Dig. 50, 16, 178, 3:
actiones quae ipso jure conpetunt opposed to actiones quae a prae-
tore dantur, § 112: actiones quae ex legitimis et civilibus causis
descendant opposed to actiones quas praetor ex sua jurisdictione
comparatas habet, Inst. 4, 6, 3 : actio civilis opposed to actio in
factum a praetore danda, Dig. 2, 14, 7, 2: actio juris civilis opposed
to interdictum, Dig. 43, 26, 14: and lex opposed to praetor (actionum
modus vel lege vel per praetorem introductus), Dig. 50, 17, 27.
Although the division into judicia legitima and judicia quae imperio
continentur does not exactly coincide with the division into actiones
legitimae and actiones honorariae (e. g. an actio in factum, if
litigated at Borne before a Roman judex by two Romans, would
be judicium legitimum, and, vice versa, an actio civilis, if litigated
before recuperators or in the provinces or between aliens, would be
judicium quod imperio continetur, § 109), yet it is essentially the
same, being based on the same antithesis of the Legislator and the
Executive.
§§ 104, 105. Statutory actions (judicia legitima), so named perhaps
from the lex Julia judiciaria, the statute by which they were denned,
had by that statute a pendency of eighteen months. After that
period they could neither be prosecuted nor renewed, as the right
of action was consumed by res in judicium deducta. If the delay
was caused by the defendant the plaintiff had a remedy by an
action De dolo, Dig. 4, 3, 18, 4. Actions binding (continentia) by
magisterial power had a still shorter pendency, the commission of
the judex only continuing in force so long as the praetor who
appointed him, and who himself was only appointed for a year,
continued in office.
It is difficult to reconcile this account of the prescription or limita-
tion of legal process with what we read of the duration of some
controversies. Martial speaks of a cause that had been litigated in
the three Fora, the Forum Romanum, the Forum Julium, and the
Forum Augustum, for twenty years :
Lis te bis decimae numerantem frigora brumae
Conterit una tribus, Gargiliane, foris.
Ah miser et demens ! viginti litigat annis
Quisquam cui vinci, Gargiliane, licet? 7, 65.
Bethmann-Hollweg, § 80, suggests that the limitation did not
apply to Centumviral suits nor to Cognitio extraordinaria ; and
that any litigation might be protracted by a series of appeals.
This limit to the duration of legal proceedings, though it has
left some traces in the Digest, was obsolete long before Justinian.
Theodosius limited the pendency of actions to thirty years, Cod.
Theod. 4, 14, 1 ; i.e. he ordained that as the right of action expired
iv. §§ 103-9.] IVDICIA LEGITIMO IVRE AVT IMPERIO 539
unless Litis contestatio took place within thirty years from the
nativity of an action ; so, after Litis contestatio, an interval of
thirty years after any act of the judge or one of the parties should
be a bar to any further prosecution of the action. Justinian limited
the duration of civil suits to three years from Litis contestatio,
and sanctioned the law against a party who failed to proceed in the
action after being ordered to do so by contumacial proceedings
(eremodicium, tyy/jos Sit??) against the contumacious plaintiff or
defendant, Cod. 3, 1, 13 ; if both parties agreed to let the litigation
lie dormant, he limited the dormancy or pendency to forty years.
Bethmann-Hollweg, § 147.
The expiration of the commission of the judex by the expiration
of the functions of the praetor who appointed him suggests an
analogy to the Common Law previous to 1 Greo. 3, c. 23 ; by which act
judges are continued in their offices notwithstanding any demise of
the crown, which was formerly held to vacate their seats.
The division of actions into those with a pendency of eighteen
months (judicia legitima) and those which expire with the praetor-
ship (judicia imperio oontinentia) is not coincident with the division
into those which are ipso jure extinctive of future litigation and
those which are merely counteractive ope exceptionis, § 106. For
although all judicia imperio continentia, whether in jus or in
factum, are merely liable to be met by an exception, some judicia
legitima, i. e. real actions and actiones honorariae, are not ipso jure
extinctive, § 107. Gaius, therefore, would have been guilty of an
inaccuracy if, 3 §§ 180, 181, he meant to identify the two divisions,
but when he says, I.e. § 181, ' si legitimo judicio debitum petiero,
postea de eo ipso jure agere non possim,' he seems only to be speaking
of an actio stricti juris for the recovery of a debt, and not to refer
in any way to actiones in rem or actiones honorariae.
The reason why real actions and actions in factum had not the
same power of Novation as personal actions in jus was probably
as follows : Under the legis actiones the same claim could not be the
subject of a second trial, being ipso jure consumed or extinguished
by having been once sued on ; § 1 08. Nam qua de re actum semel
erat, de ea postea ipso jure agi non poterat : nee omnino ita, ut nunc,
usus erat illis temporibus exceptionum. After the lex Aebutia,
which instituted the formulary procedure, an action in personam
with an intentio in jus concepta, e.g. si paret Numerium Negidium
Aulo Agerio x H.S. dare oportere, an action on which the parties
had joined issue was consumed ipso jure in the same way as
actions under the older procedure, provided it was a judicium legiti-
mum, i. e. instituted between Eoman citizens before a single judex,
and within an area bounded by the first milestone. Proceedings
540 DE ACTIONIBVS [iv. §§ 103-109.
thus defined, when once issue was joined in them, produced what is
called a necessary novation, 3 § 180. Tollitur adhuc obligatio litis
contestatione, si modo legitimo judicio fuerit actum : nam tune
obligatio quidem principals dissolvitur, incipit autem teneri reus litis
contestatione. But this formal rule was not in terpreted as applicable
to actions in factum, since such actions do not allege in the intentio
of their formula any legal claim of the plaintiff, but only a fact ; and
thus do not formally contain any obligation, which could be the
subject of novation ; actions in factum indeed were used precisely in
those cases, where no right was recognized by the civil law, that is
where no right would have been enforceable by statute-process. Nor
was the principle of ipso jure consumption applicable to real actions
(actiones in rem), as the assertion made in the intentio of such actions,
e.g. hunc fundum ex jure Quiritium meum esse, was not made ex-
clusively against a particular defendant, and therefore did not prevent
the action being ipso jure maintainable a second time. In Eeal
actions and actions in factum, therefore, even though in other respects
they had the characteristics of judicialegitima, the defendant required
the protection of the exceptio rei in judicium deductae or rei judicatae.
Cf. Keller, Civil Process, § 60.
§ 109. The nature of the lex Ollinia is not known.
The same imperium mixtum whence emanated new actions in
favour of the plaintiff also issued exceptions in favour of the de-
fendant, and in particular the exceptio rei in judicium deductae or
rei judicatae, which supplemented the novation or consumption
whereby a right of action was extinguished or annihilated by direct
operation of law (ipso jure, § 106). The aim of the law in barring
once-used rights of action directly by consumption or indirectly
by exceptio, was to protect a defendant from being harassed by
successive suits, and to guard against the public evil which would
arise in the shape of a general unsettlement and uncertainty of
rights if judicial decisions were not conclusive, Dig. 44, 2, 6. ' That
one right of action should only be tried once is a reasonable rule to
prevent interminable litigation and the embarrassment of contrary
decisions.' Accordingly, it was adopted as a maxim that (in the
absence of appeal or after appeal) judicial decisions should be assumed
to be true. Res judicata pro veritate accipitur, Dig. 1, 5, 25. The
principle may be stated more at length as follows : A judgment
shall not be contradicted by a judgment in a subsequent trial
between the same parties where the same right is in question
(except, of course, by the judgment of a court of appeal). Et gene-
raliter, ut Julianas definit, exceptio rei judicatae obstat quotiens inter
easdem personas eadem quaestio revocatur vel alio genere judicii,
Dig. 44, 2, 7, 4. ' The plea of previous judgment is a bar when-
iv. §§ 103-109.] RES IN IVDICIVM DEDVCTA 541
ever the same question of right is renewed between the same parties
by whatever form of action.' Let us consider more minutely the
import of this rule.
The parties must be the same. Cum res inter alios judicatae nul-
lum aliis praejudicium faciant, Dig. 44, 2, 1. 'A judgment between
certain parties does not determine the rights of other parties.'
This is subject to certain exceptions. For instance, a judgment
is conclusive not only against the parties but also against their suc-
cessors, whether universal or particular, Cod. 8, 35, 2. A judgment
in a suit litigated by the father respecting the status (legitimacy) of
a child is conclusive on all the world. A mortgagee, purchaser,
husband, are bound by the judgment in a suit about title to the
property litigated by the mortgagor, vendor, donor of dower, Dig.
42, 1, 63. A suit between a testamentary heir and the heir by
intestacy may bind the legatees and the manumissi who accordingly
may be entitled to be made parties and to appeal. In these cases
the judex is said to establish jus, i. e. jus inter omnes, not merely
jus inter partes : Placet enim ejus rei judicem jus facere, Dig. 25,
3, 3, pr. : Jus facit haec pronuntiatio, Dig. 30, 1, 50, 1.
The form of action is immaterial provided that the same right is
contested. Thus a depositor, lender, pledger, may recover damages
for injury to the thing deposited, lent, or pledged, either by action
on his contract or under the lex Aquilia, but if cast in one, he cannot
bring the other, if the question of liability is really the same. Cf.
Grueber, Lex Aquilia, p. 230, &c.
It is otherwise as if the right contested is really different ; if in one
action a plaintiff claims a jus in rem, in the other a jus in personam.
Paulus respondit, ei qui in rem egisset nee tenuisset, postea con-
dicenti non obstare exceptionem rei judicatae, Dig. 44, 2, 31. 'If
a plaintiff after losing a real action brings a personal action, he is
not barred by the plea of previous judgment. '
The term ' the same right ' must be taken to include a right and
its correlative duty ; in other words, it is immaterial that the
position of plaintiff and defendant is inverted. Si quis rem a non
domino emerit, mox petente domino absolutus sit, deinde posses-
sionem amiserit et a domino petierit, adversus exceptionem, 'Si
non ejus sit res,' replicatione hac adjuvabitur : ' At si res judicata
non sit,' Dig. 44, 2, 24. 'A purchaser of a thing from a non-pro-
prietor, sued for it by the true proprietor and acquitted, afterwards
losing possession thereof, and seeking (by actio Publiciana, 2 § 43)
to recover it from the former proprietor, may meet the exception
by which he pleads true dominion by the replication of previous judg-
ment.' This example further shows that the plea, though invented
chiefly to protect defendants, is sometimes available for plaintiffs.
542 DE ACTIONIBVS [iv. §§ 103-109.
When the same right is in question it is immaterial that the
secondary object (2 § 1, comm.) of the right is different. Thus,
a plaintiff claiming to be heir, who fails when he brings hereditatis
petitio for Blackacre, cannot afterwards bring hereditatis petitio for
Whiteacre as a part of the same inheritance. Of course, if there is
no question of hereditas, the difference in the object involves a
different right of Ownership : and the Vindicatio by which a man
claims Blackacre is not barred by a previous Vindicatio in which he
claimed Whiteacre.
Perhaps the same right may be in question even when the primary
object, the benefit which the right immediately contemplates, is
different. Thus, a plaintiff who fails in a condictio furtiva brought
to recover stolen property, cannot afterwards maintain an actio furti
to recover a penalty for theft. We might say that the plaintiff has
a single compound right to recover his property and to recover
a penalty, but perhaps it is more accurate to say that he has two
separate rights which, however, stand or fall together by necessary
implication. The identity of the right contested is more expressly
insisted on in the legal maxim, De eadem re ne bis sit actio, which
grounded the exceptio rei in judicium deductae, founded on the nova-
tion of the plaintiff's original right by Litis contestatio. The maxim,
Kes judicata pro veritate accipitur, grounds the exceptio rei judicatae,
which rests on the novation of Litis contestatio by Condemnatio or
Absolutio, 3 § 180 ; post litem contestatam condemnari oportere, post
condemnationem judicatum facere oportere. The two exceptions were
substantially the same, and were pleaded in the formula by the same
terms: Quod ea res in judicium ante venisset, cf. Lenel, tit. xliv,
§ 275. The maxim, Kes judicata pro veritate accipitur, is the more
comprehensive as extending beyond the right to the facts constituting
the title and their logical consequences. Bethmann-Hollweg, § 111.
It is immaterial, namely, whether a proposition was decided as
the final question, or as an essential element and immediate ground
of the final decision (ratio decidendi). Every judgment is a decision
not only on the ultimate issue, but by implication on all the ante-
cedent pleas, not only the exception, replication, duplication (which
are not a direct answer to the claim of the plaintiff or defendant,
being only counteractive, § 115), but also on all facts, e.g. solutio,
acceptilatio, novatio, which run counter to the claim of the plaintiff
in the intentio and so would not be expressed in a Koman formula.
Thus, a plaintiff who fails when he sues by real action for a particular
thing, or by a personal action for a debt, basing his claim on the
presupposition of his succession to a person deceased, cannot after-
wards claim the whole succession by hereditatis petitio. Hence we
often meet with praescriptio praejudicialis, e. g. Ea res agatur si in ea
iv. §§ 103-109.] RES IVDICATA 543
re praejudicium hereditati non fiat, § 133, or exceptio praejudicialis,
e. g. extra quam si in reum capitis praejudicium fiat, Cic. de Inven-
tione, 2, 20 ; i. e. dilatory pleas whereby a party seeks to postpone
a less important issue (causa minor) until a more important issue
(causa major) with which it is indissolubly connected shall have
been decided. This praescriptio implies that if the more important
issue were decided on possibly inadequate examination, as incidental
or ancillary to the decision of the minor issue, the re-trial of the
more important issue would be barred by the exceptio rei judicatae.
Observe that the rule is, a judgment shall not be contradicted by
a judgment in another action when the same right is in question,
not, when the same title is in question. The latter expression would
be sufficient to meet the case of personal actions. Here every
different obligation is ground to support a different action, and every
different title engenders a different obligation. Thus a plaintiff who
fails in an action on tort alleging Dolus is not precluded from a
subsequent action on tort alleging Culpa, Dig. 40, 12, 13. But the
rule so stated would not adequately meet the case of real actions.
Here it is immaterial that the plaintiff alleges a different title. There
can be many obligations between the same parties in respect of the
same subject ; but the same subject only admits of one owner, and
consequently of only one valid title to ownership. Hence the plaintiff
in a real action was required to adduce all his fancied titles on pain
of being barred by the exception of res judicata, and if, for instance,
he claims ownership on the ground of tradition he cannot afterwards
claim by another title, e.g. usucapion, § 131 a. A man who fails in
a claim as testamentary heir may, however, afterwards claim as heir
by descent, Dig. 5, 3, 8 : he has as many actions (hereditatis petitio)
as he has delations : in fact the legacies and the arbitrary division of
the succession between the co-heirs make a testamentary inheritance
quite a different right (alia res) from an intestate inheritance. (So
Ihering, § 51. But cf. Savigny, § 300.) The rule, of course, does not
apply to a title not in existence at the time of the former action
(causa superveniens), and it is defeated if the plaintiff takes the
precaution expressly to limit the former action (probably by means
of a praescriptio) to the investigation of a specific title, a limitation
called causae adjectio. If he was allowed by the praetor to do this
and failed in his suit, he could afterwards claim to be owner by a
different title. Si quis petat fundum suum esse eo, quod Titius eum
sibi tradiderit, si postea alia ex causa petat causa adjecta, non debet
summoveri exceptione, Dig. 44, 2, 11, 2. 'A plaintiff who loses an
action in which he claimed property in land on the ground of de-
livery of possession, is not barred by exception from bringing another
real action, expressly limited, like the former, to a specific title.'
544 DE ACTIONIBVS [iv. §§ 103-109.
Directly extractive (ipso jure) consumption of a right of action
vanished with the formulary system, and in Justinian's time the
averment of Res judicata is only found under the form of Exceptio
or a Counteractive plea. Indeed, when the judex of the republican
period ceased to be commissioned to hear and determine causes, one
of the conditions of Judicium legitimum, of which such consumption
was a consequence (unus judex, § 107), was always of necessity
wanting.
But this was not the only change : the consumption of a right of
action by the operation of Ees in judicium deducta, whether as a
directly extinctive (ipso jure) or a counteractive plea (ope exceptionis) ;
in other words, necessary Novation operated by Litis contestatio,
was also abrogated and is not to be found in the statute-book of
Justinian. Even the operation of Ees judicata, so far as it was
governed by the same rules as Ees in judicium deducta and merely
indicated by its name a later stage of the proceedings (sententia lata),
may also be said to have been abolished. The rules, that is to say,
which governed the transformed Exceptio rei judicatae, as it prevailed
in the time of Justinian, were much more rational and flexible than
the hard-and-fast doctrine of Necessary novation, whether by Litis
contestatio or by Sententia lata, which prevailed in the time of
Statute-process, § 108, and apparently survived to the days of Gaius.
In determining whether the exceptio rei judicatae should be allowed
to put a stop to the maintenance of a new action, the judge in
Justinian's time would have to consider whether the second action
raised the same question between the same parties as the first action ;
in other words, whether the reasons why the plaintiffs first action
was dismissed were still applicable in the case of the second action.
If they were, the exceptio would prevail, if not, if e. g. the plaintiffs
first action had been dismissed in consequence of Plus petitio or some
dilatory plea or by consumption of process (duration of suit for
eighteen months, or termination of praetorship), he was no longer
held to have eternally forfeited his claim : but suitors were merely
restrained, in accordance with the real object of the institution,
from harassing their opponents with renewed litigation on the
precise questions that had once been adequately decided. The opera-
tion of the plea was not less powerful nor less extensive, but made
more completely conformable to equity. Savigny, §§ 280-301.
§ 110. Quo loco admonendi §110. Here we ought to take
sumus eas quidem actiones notice that actions founded on
quae ex lege senatusue consultis a statute (lex) or a senatuscon-
proficiscuntur perpetuo solere sultum are granted by the praetor
praetorem accommodare, eas after any length of time has
ueroquaeexpropriaipsius iuris- elapsed, but those founded on the
iv. §§110-113.] TRANSMISSIO ACTIONVM
545
dictione pendent plerumjque
int?'o. annum dare.
Inst. 4, 12, pr.
§ 111. Aliquando tamen j
imitatur ius legitimum : quales
sunt eae, quas bonorum posses-
soribus ceterisque qui heredis
loco sunt accommodat. furti
quoque manifest! actio.quamuis
ex ipsius praetoris iurisdictione
proficiscatur, perpetuo datur ;
et merito, cum pro capital!
poena pecuniaria constituta sit.
Inst. 1. c.
§ 112. Non omnes actiones,
quae in aliquem aut ipso iure
conpetunt aut a praetore dan-
tur, etiam in heredem aeque
conpetunt aut dari solent. est
enim certissima iuris regula, ex
maleficm poenales actiones in
heredem nee conpetere nee dari
solere, ueluti furti, ui bonorum
raptorum, iniuriarum, damni
iniuriae. sed heredi&us huius
modi actiones conpetunt nee
denegantur, excepta iniuriarum
actione et si qua alia similis
inueniatur actio.
Inst. 4, 12. 1.
§ 113. Aliquando tamen
(etiamy ex contractu actio
neque heredi neque in heredem
conpetit ; nam adstipulatoris
heres non habet actionem, et
spoTisoris et fidepromissoris
heres non tenetur. Inst. I.e.
praetor's own jurisdiction are
usually only granted within a
year from their having arisen.
§111. But sometimes the prae-
tor follows the pattern of civil
law and makes his actions per-
petual ; such are the actions
which he grants to the praetorian
successor (bonorum possessor)
and to other persons who are
in the position of an heir (heres)
(§ 35). So for theft detected in
the commission (furti manifest!),
the action, though praetorian, is
perpetual ; and properly so, the
pecuniary penalty having been
instituted in the place of capital
punishment.
§ 112. It is not always the
case that the actions, whether
civil or praetorian, which lie
against a man lie also against his
heir, the rule being absolute that
penal actions arising from delict,
for instance, from theft (actio
furti), rapine (vi bonorum rap-
torum), outrage (injuriarum), un-
lawful damage (damni injuriae),
are not granted against the heir
of the delinquent ; but the heirs of
the injured party are competent to
bring, and are not refused, these
actions, except in the case of the
action for outrage and any similar
action if such is to be found.
§ 113. Sometimes, however,
even an action upon contract
cannot be brought by the heir,
nor against the heir ; for the heir
of the adstipulator has no action,
nor does any lie against the heir
of the sponsor or fidepromissor.
§ 110. Having considered what time may elapse between joinder
of issue in an action (litis contestatio) and its termination (sententia
lata), Gaius proceeds to inquire what time may elapse between the
nativity of a right of action or the event which marks the first
moment of the right of action (actio nata) and the exercise of this
right or actual commencement of the action. Thus he is here taking
notice of the subject which we call the Limitation of actions.
546 DE ACTIONIBVS [iv. §§ 110-113.
Originally all civil actions (actiones civiles) were unlimited in
duration (actiones perpetuae) ; afterwards the praetors limited in their
edicts the right of bringing most of the new actions which they
introduced (actiones praetoriae) to the period of a year from the
date of the event on which the action was founded 'infra annum
judicium dabo.' The aediles limited their actions on account of
sale to a still shorter period, viz. to six or twelve months of dies
utiles. But the praetorian actions which were framed after the
pattern of the civil law were, as we see by the text, §111, like the civil
actions they copied, unlimited, while on the other hand some few civil
actions were subject to a limitation, as the Querela Inofficiosi Testa-
menti, which had to be brought within five years. Those actions
which could be brought after any time had elapsed were called on this
account actiones perpetuae, as opposed to actiones temporales, which
were actions limited in respect of duration. At some uncertain
period a limitation was introduced by the provincial governors in
suits relating to land, known as praescriptio longi temporis : if
plaintiff and defendant were domiciled in the same province, ten
years' possession, accompanied with Justus titulus and bona fides on
the part of the possessor, entitled the defendant to plead the exceptio
temporis, and so to defeat the action of the owner for recovery of
possession: twenty years' possession was required if plaintiff and
defendant were domiciled in different provinces. In later times,
indeed, as we noticed when we were dealing with the subject of
usucapion, such possession constituted not simply a limitation
of the owner's action, that is, afforded a good defence against his
action, but operated like usucapion ; that is, transferred the owner-
ship to the possessor. Constantine introduced a forty years'
limitation of a real action or prescription: that is, ordained that
an owner should lose his right of action after forty years'
possession, Cod. 7, 39, 2, pr. The emperors Honorius and Theodosius
II, A. D. 424, made all actions, not otherwise limited, subject to
a limitation of thirty or in some exceptional cases forty years, so
that from this time actio perpetua no longer meant an action
which was unlimited, but one which could be maintained at any
time within this long period. See 2 §§ 40-61, comm., 4 § 131, comm.
Justinian made longi temporis praescriptio, or possessio, that is,
continuous possession for ten or twenty years, subject to the con-
ditions of usucapion, the universal mode of acquiring ownership
in land by operation of time ; and added a second form called
longissimi temporis praescriptio, Cod. 7, 39, 8. But we are only
concerned with praescriptio here in its original form as a limitation
of the owner's right of action ; as a mode of acquiring ownership
it belongs to another part of this treatise. And even as a limitation
iv. §§ 110-113.] ACTIONES TEMPORALES 547
of action such prescription has this peculiarity, that it cannot be
pleaded generally, but only by a defendant, who has been in posses-
sion of the property in question for the prescribed period. Thus
being a defence founded on possession, and not simply on the owner's
omission to bring his action, it comes to a great extent under the
category of substantive law.
Longi temporis praescriptio was applicable as a defence not only to
actions of an owner claiming possession of his property, but also
to those relating to the existence of a servitude, and though a lex
Scribonia is said to have done away with the usucapion of servitudes,
in later imperial law praescriptio became a mode of acquiring
servitudes, as it was of acquiring ownership. In the thirteenth
century the canon law required as a condition both of acquisitive and
of extinctive prescription, in all cases brought for restitution of pos-
session, continued bona fides (not merely bona fides in, the inception,
as the civil law required for usucapion) on the part of the possessor.
This principle applied to the defendant in all real actions and in
various personal actions, viz. commodati, depositi, loeati, pigneraticia,
the latter being the action whereby a person who had given over his
property in pledge to his creditors sued on the contract for its
restitution. Accordingly, by canon law, the debitor rei alienae, e. g.
rei commodatae, as opposed to the debitor rei propriae, e. g. pecuniae
creditae, had neither the right of acquisitive nor of extinctive prescrip-
tion in the absence of continued bona fides. Savigny, § 244.
In every limitation of an action or prescription, whether of longer
or shorter duration, two points have to be fixed : the moment at
which the time of prescription begins to run and the moment at which
it is terminated. I proceed to the consideration of this problem.
The date of the Nativity of a right of action (actio nata), or the
moment from which prescription begins to run, is in Eeal actions
the moment when a Keal right is violated ; e. g. the moment when
the defendant takes unpermitted possession of a thing of which the
plaintiff is proprietor ; or when a hirer or borrower converts detention
into possession by beginning to possess in his own name and not in
the name of the proprietor.
In Personal action on delict prescription begins to run from the
moment of the delict ; for at this moment the sanctioning right of
the plaintiff to recover the penalty is complete.
Similarly in Quasi-contracts : prescription of tutelae judicium begins
to run from the end of the guardianship when the tutor's default is
established : that of condictio indebiti from the date of the mistaken
payment.
In actions on Contract, according to most writers including
Savigny, prescription similarly begins to run from the moment at
N n 2
548 DE ACTIONIBVS [iv. §§110-113.
which the contract is violated, i. e. from the inception of the creditor's
sanctioning right. According to Vangerow, § 147, the running of
prescription does not always wait for the violation of the creditor's
primary right, or a breach of the contract by the debtor. If a term for
performance is fixed, then indeed prescription will begin to run from
the expiration of the term, i.e. from the violation of the plaintiff's
primary right, Cod. 7, 39, 7, 4 : but whenever no term is prefixed,
prescription begins not, as Savigny holds, from the creditor's demand
of performance, but from the completion of the contract ; i. e. con-
temporaneously with the origin of the primary right. It precedes
any violation of the plaintiff's right, unless we assume (what is
absurd) that the default of instantaneous performance is such a
violation. Savigny, § 240.
Savigny would except from the rule those contracts which, like
mutuum, depositum, commodatum and the like, essentially and
in their nature contemplate a certain delay in performance. In
such contracts he holds that prescription begins not from the com-
pletion of the contract, but from the demand of performance.
It seems paradoxical to maintain that for the purposes of prescrip-
tion the right of action precedes the existence of a wrong: butt
Vangerow's doctrine seems to be confirmed by the Digest : Est . . .
scriptum eum qui rem deposuit, statim posse deposit! actione agere :
hoc enim ipso dolo facere eum qui suscepit, quod reposcenti rem
non reddat, Dig. 16, 3, 1, 22 ; from which it appears that the action
is equivalent to a demand. Similarly we read in the Institutes of
Justinian, 3, 15,2 [Ex stipulatione pura] confestim peti potest. Indeed
it would be strange, as Vangerow observes, if the neglect of a creditor
or his successor to demand repayment for 100 years adjourned the in-
ception of prescription for all that period. Cf. Windscheid, 1 § 1 07, n. 5.
It is clear that the Nativity of an action is not to be identified
with Mora, but will often be an earlier occurrence. Mora, which
in respect of interest and liability for loss is attended with serious
consequences to a defendant (whereas praescriptio is adverse to the
plaintiff), does not arise before one of two events ; either the expira-
tion of the term prefixed for payment, or the debtor's refusal to
comply with the creditor's demand, 2 § 280, comm. The demand
of the creditor is necessary to disprove the presumption that the
delay of payment was by his indulgence : no such condition, accord-
ing to Vangerow's doctrine, delays the nativity of a right of action.
The other limit of Prescription, or the event by which it is
broken (interruptio), is any recognition of a right by the defendant
or the institution of a suit by the plaintiff. The institution of
a suit was in earlier times identified with Litis contestatio : but in
the latest period, as this stage of procedure could be delayed by the
iv. §§110-113.] ACTIONES TEMPORALES 549
arts of the defendant, it was necessary to fix some other point, with
which this and the other effects of Litis contestatio should be con-
nected. Savigny, § 278. Accordingly Citation, awarded by the
judge in response to the libellus of the plaintiff and served upon
the defendant (insinuatio, conventio) by a public officer, was deemed
to be the moment at which an action commences, and prescription
is interrupted, or usucapion is revocable. Interruptio per con-
ventionem introducta, Cod. 7, 39, 7, 5. Qui obnoxium suum in
judicium clamaverit et libellum conventionis ei transmiserit ....
videri jus suum omne eum in judicium deduxisse et esse interrupta
temporum curricula, Cod. 7, 40, 3.
The opinion of Savigny that prescription in later Koman law was
interrupted or put a stop to in all actions alike by Citation is the
generally received one, though Vangerow and others maintain that
this only applies to actiones perpetuae, not to actiones temporales,
the old rule as to litis contestatio still surviving according to them
in respect of the latter. Savigny refuses to accept such limitation,
and explains (§ 242, III) how this erroneous view (as he considers
it) arose. The passages from the older writers mentioning litis
contestatio in this connexion all refer to actiones temporales, for
the simple reason that none other were prescriptible in the classical
law, but it does not follow that this difference between the two kinds
of action was maintained, when all actions became prescriptible ;
indeed, if there was to be any difference, the interruption of actiones
temporales ought to have been made easier than that of actiones
perpetuae, and not, as according to Vangerow's view it would be,
more difficult. The two passages in the Digest which seem to
support Vangerow, Dig. 12, 2, 9, 3, Dig. 27, 7, 8, 1, the compilers
forgot to alter, so as to bring them into accordance with existing
law. (Windscheid, 1 § 108, n. 4.)
We must distinguish between the interruption and the mere
suspension, dormancy, or stay, of prescription. When prescription
is interrupted (for instance, by acknowledgment of the debt) the
already elapsed period of inactivity on the part of the plaintiff is
cancelled, and the whole prescription must recommence from the
date of the interruption. When prescription is suspended, if such
suspension takes place after prescription has begun to run, the
period which has elapsed is not invalidated but is added to the
period which follows the removal of the obstacle which caused the
suspension. Suspension, as expressed in the modern maxim : Agere
non valenti non currit praescriptio, is produced by some inability of
the plaintiff to sue : but this rule is not generally applicable, when
the action can be carried on by an agent, as in the case of a lunatic ;
though suspension is produced by the party entitled being impubes
550 DE ACTIONIBVS [iv. §§ 110-113.
or by his minority, except in the prescription of thirty years : it is
also produced by the obstacles recognized in the rules of tempus utile,
2 § 165, comm., and by the beneficium deliberandi accorded to the heir,
2 § 162, comm. By the ordinance de tigno injuncto in the Twelve
Tables the right of the co-owner of building materials to sue for them
was suspended so long as they formed part of a building, Inst. 2, 1 , 7, 1 0.
Exception had sometimes a stronger, sometimes a weaker, opera-
tion: the stronger effect is the extinction of both civilis and
naturalis obligatio. Such is the effect of the exceptio Sc. Vellaeani,
3 §§ 1 1 0- 1 2 7, comm. The weaker operation is a bar to civilis obligatio,
but leaves naturalis obligatio unimpeded and is instanced by exceptio
Sc. Macedoniani, 3 §§ 90, 91, comm. Naturalis obligatio, as we have
already mentioned, 3 §§ 88, 89, comm., besides the negative feature
that it is not a ground to support an action may have other important
consequences : it excludes indebiti condictio in the event of payment
by mistake, and it may be a ground to support compensatio, novatio,
pignus. fidejussio, constitutum. Let us examine whether prescription
or Exceptio temporalis had the weaker or the stronger operation.
We must distinguish between Keal and Personal actions.
The effect of the mere limitation of a real action (e. g. vindicatio)
is that the right of the original owner continues, but is not
ground to support an action against the possessor or his successor.
If the thing passes into the possession of a stranger, then the
original owner can recover it from him by vindicatio: and if it
comes by lawful means into the possession of the original owner,
the former possessor cannot recover it from him by vindicatio,
Cod. 7, 39, 8, 1. In the event of bona fides there could under
the law of Justinian after thirty or forty years be no question
of mere limitation ; because then, as we have seen, the very jus of
the original owner would have been extinguished. In real actions,
then, limitation does not entirely deprive the owner of his right,
though here of course there is no obligatio naturalis.
The effect of prescription or limitation in personal actions is contro-
verted. Savigny holds that the stronger effect is confined to ex-
ceptions founded on jus naturale ; and that prescription being, as shown
by its arbitrary numerical character, an institution of jus civile, can
only have the weaker operation, i.e. leaves untouched the obligatio
naturalis, § 249. Vangerow, however, seems to show conclusively,
§ 151, that this doctrine is not tenable. Many passages of the
Digest show that in temporal actions prescription of right to sue
had the stronger operation, excluding fidejussio, Dig. 46, 1, 37, and
constitutum, Dig. 13, 5, 18, 1, that is not regarding a prescribed
debt as a subsisting debt for the purpose of being secured by way of
suretyship, though if it had been a natural obligation, it could have
iv. §§110-113.] TRANSMISSIO ACTIONVM 551
been thus secured, and admitting condictio indebiti, Dig. 46, 8, 25,
that is if a prescribed debt was paid to the creditor by mistake, the
debtor could claim repayment, which if a natural obligation remained
after the time of limitation had passed, he could not have done :
and there is no reason why its operation should not be equally
strong in perpetual actions. Indeed the very object of prescription,
the setting of some limit to the duration of uncertainty, would be
defeated if a creditor were allowed to enforce by Compensation a
claim that for an indefinite period he had not attempted to enforce by
action. Prescription, then, in all personal actions has the stronger
operation. (English law seems to differ, at least so far as it recognizes
a debt made irrecoverable by the statute of limitations as a sufficient
consideration to give legal force to the debtor's promise to pay : for,
in the absence of all legal obligation, a mere moral obligation would
admittedly not suffice to bind the debtor before the tribunals. Also
a lien, or right to detain goods till a debt is satisfied, exists after the
remedy by action is barred by the Statute of Limitations.)
Has prescription the same effect upon the grounds of defence
(Exceptions) that it has upon the grounds of attack (Actions) : can
there be temporis Eeplicatio as well as temporis Exceptio? This
depends upon the nature of the exception. In the case of some
exceptions there are corresponding actions, which other exceptions
are without. An instance of the latter class is the exceptio rei
judicatae when judgment in a vindicatio is given in favour of the
possessor. This merely denies the right of the plaintiff without
affirming the right of the defendant, and therefore cannot be used
by the defendant as a ground of action : but it may be employed
by the defendant as a means of defence against the plaintiff or his
successor after any lapse of years.
An instance of exception having a corresponding action is exceptio
metus, which belongs to a defendant who may, if he chooses, be
a plaintiff in an actio quod metus causa. So, too, there is the
exceptio doli and the actio doli.
Savigny holds, § 249, that such exceptions are imprescriptible ;
but the better opinion seems to be that they have the same duration
as the right of action (in the words of the French jurists : Tant
dure 1'action, tant dure 1'exception) : for the reason alleged for
making exceptions imprescriptible: Is cum quo agitur non habet
potestatem quando conveniatur, Dig. 44, 4, 5, 6, the inability of the
person armed with the exception to fix when the matter shall be
litigated, is inapplicable when the same person is also armed with
a right of action. Vangerow, 1. c.
§ 111. The rules prescribed by the praetor for the duration of
actions seem to have been as follows ; purely restorative or remedial
552 DE ACTIONIBVS [iv. §§ 110-113.
actions (quae rei persecutionem habent) i. e. actions where there is
neither gain for the plaintiff nor loss for the defendant, but the
patrimony of each is left at its original level, § 7, are generally
speaking perpetual ; that is to say, according to the change in the law
made subsequently to the time of Gaius, are prescribed in thirty years.
Cf. Dig. 44, 7, 35 In honorariis actionibus sic esse definiendum
Cassius ait, ut quae rei persecutionem habeant, hae etiam post annum
darentur, ceterae intra annum. Honorariae autem, quae post annum
non dantur, nee in heredem dandae sunt, ut tamen lucrum ei extor-
queatur, sicut fit in actione doli et interdicto unde vi et similibus.
Penal actions given by the praetor (quibus poenam persequimur),
using the word in a wide sense to include both those actions, where
there is no gain to the plaintiff but possibly a loss to the defendant,
as well as those where if judgment passes for the plaintiff there is
enrichment for the plaintiff and impoverishment for the defendant,
are annual. But the actio furti manifesti, though a praetorian action,
was perpetual, for the reason given by Gaius in § 111.
The actio rerum amotarum, being brought for the purpose of
restitution, was perpetual. Cf. Dig. 35, 2, 21, 5 Haec actio licet ex
delicto nascatur, tamen rei persecutionem continet et ideo non anno
finitur, sicut et condictio furtiva.
The actio doli mali, if brought for complete indemnification, was
annual : but if the damages were limited to the amount gained by
the defendant, in which case the action was rei persecutoria, it was
perpetual, Dig. 4, 3, 28.
When a right of action was limited to a year, this was an annus
utilis, that is, a year of dies utiles, of days open to jurisdiction, and
on which the plaintiff was not hindered by any insurmountable
obstacle, such as absence of plaintiff or defendant, illness of plaintiff
and inability to appoint a procurator, Dig. 44, 3, 1. An annus
utilis, though nominally a year, might really be a much longer
period. Where a right of action lasted beyond a year, every day
was counted (tempus continuum), 2 § 173. From the indefinite
duration of annus utilis it is clear that the suggestion, Inst. 4^ 12,
pr., of a connexion between the annus of prescription and the annus
of the praetorship is purely fanciful.
§ 112. The transmission of an action to the heirs of the parties is
either active transmission, i.e. transmission to the heir of the party
having a right of action, or passive transmission, i. e. transmission
of liability to the heir of the party subject to an action.
The general rule relating to transmission is, that all actions are
transmissible, both actively, that is, to the heirs of the party having
a right of action, and passively, that is, to the heirs of the party
subject to an action.
iv. §§110-113.] TRANSMISSIO ACTIONVM 553
The exceptions are that (i) as to active transmission Vindictive
actions (of which the type is actio injuriarum), i. e. actions brought
to avenge wrong to the feelings rather than to repair wrong to the
property, are not transmitted to the heirs of the party having a
right of action ; and that (2) as to passive transmission, delictal
actions are only transmitted against the heirs of the party subject to
an action so far as the inheritance has been enriched by his wrong.
But condictio furtiva lies against the heres of the defendant for the
whole amount of loss caused by the furtum, which some writers
explain by saying that, although this action is occasioned by delict, it
is not deemed to be delictal or penal, but purely restorative (rei
persecutoria). Condictio furtiva, however, is not only occasioned by
delict, but gives rise to penal consequences, should the damages
exceed the amount of profit which the defendant has derived from
the delict. The fact that these penal consequences attach not only
to the fur himself but also to his heir can only be regarded as an
anomaly, whether we look on the action as a delictal one, or as a
species t>f condictio sine causa. Cf. Dernburg, Pand. 3 § 139,
Windscheid, Pand. 2 § 453.
Penal actions, either when their object is reparation for the
injury or when it is the recovery of a penalty, when once brought,
that is, when they have once reached the stage of litis contestatio,
become capable of both active and passive transmission: Poenales
autem actiones, si ab ipsis principalibus personis fuerint contestatae,
et heredibus dantur et contra heredes transeunt, Inst. 4, 12, 1. In
modern systems of law based on the Roman, the heir is as a rule
liable on account of the delicts of the deceased to the extent of the
property to which he has succeeded, and not simply for the amount
the inheritance has been enriched by the wrong.
English law was made, as we have seen, by statute, more favourable
than Roman law to the plaintiff in actions ex delicto in respect of
the passive transmission of the remedy.
The executors of a testator and administrators of an intestate have the
same remedy for injury to the personal property of the deceased as he
would have had in his lifetime, 4 Ed w. Ill, c. 7; 25Edw. Ill, st. 5, c. 5.
For an injury committed against his real property within six
months of his death, they may bring an action within one year after
his death. And for an injury to either real or personal property
committed within six months before the death of the wrong-doer, an
action may be brought against his executors or administrators within
six months after they have taken on themselves administration, 3 & 4
Will. IV, c. 42. (Cf. Pollock, Law of Torts, pp. 59, 60, 4th ed.)
Under Justinian, when the Adstipulator, Sponsor, and Fide-
promissor had disappeared, all actions founded on contract were
554
DE ACTIONIBVS
[TV. §114.
passively transmissible in solidum against the heirs of the defendant ;
and it was apparently a mere inadvertence of Tribonian to repeat,
Inst. 4, 12, 1, the words of Gaius, § 113, which contemplate the
possibility that an action founded on contract should be incapable
of passive transmission. (For another explanation of this passage
see the note to it in Moyle's Inst.)
§ 114. Superest ut dispicia-
mus, si ante rem iudicatam is
cum quo agitur post acceptum
iudicium satisfaciat actori, quid
officio iudicis conueniat, utrum
absoluere, an ideo potius dam-
nare, quia iudicii accipiendi
tempore in ea causa fuerit, ut
damnari debeat. nostri prae-
ceptores absoluere eum debere
existimant, nee interest cuius
generis sit iudicium ; et hoc est
quod uulgo dicitur Sabino et
Cassioplacere omni|a iudicia ab-
solutoria esse.
— de bonae
fidei iudiciis autem idem senti-
unt, quia in eiusmo|di iudiciis
liberum est officium iudicis.
tantumdem et de in rem
actionibus putant, quia for-
mulae uer\bis id ipsum expH-
rtiatur jquibus 1
— petentur et ad 1 — inter-
dum enim
sunt etiam | in personam
tales actiones in quibus ex^ri-
jmiur —
tons —
fuerit.
-I actori qu j
paratus ad ac-
-lactum
§ 1 1 4. We next in quire whether,
if the defendant before judgment,
but after the parties have joined
issue, satisfies the plaintiff, the
judex has power to absolve him,
or must condemn him, because
he was liable to condemnation
when the formula was delivered.
The authorities of my school
hold that he should be absolved
without distinction of the kind
of action ; and hence the common
saying that according to Sabinus
and Cassius all actions involve
free power of absolution. The
other school agree in respect of
actions bonae fidei, where the
judex has more discretion, and
of real actions because there is
an express provision to this effect
in the terms of the formula : (as
also in respect of actiones arbi-
trariae in personam, since they
likewise contain an express pro-
vision in their formula that the
judex is not to condemn if the
defendant satisfies the plaintiff;
but not in respect of actions
stricti juris).
Inst. 4, 12, 2.
§ 114. Eespecting the power of the judex to absolve the defendant
in the above circumstances, Justinian confirmed the opinion of the
Sabinians, Inst. 4, 12, 2.
The principle, Omnia judicia esse absolutoria, indicates an ex-
ception to the effects of Litis contestatio. The motive of the effects
ascribed to Litis contestatio is in general to avert from the plaintiff
the injurious consequences of the protracted duration of a trial.
Accordingly if judgment passed in his favour he was put into the
position he would have occupied if judgment had immediately
iv. § 114.] OMNIA IVDICIA ABSOLVTORIA 555
followed on Litis contestatio. If this rule had been universal no
event supervening on Litis contestatio could have extinguished the
plaintiff's right to have judgment in his favour, which in some cases
would have been unjust to the defendant, but the free discretion
given to the judex by the formula of a bonae fidei action enabled
him to take into account any circumstances arising after joinder of
issue which would entitle the defendant to absolution, if admissible.
In actions stricti juris it seems at first to have been held that what
would have been an adequate ground for the extinction of the plaintiffs
claim if it had happened before Litis contestatio, e. g. the purely casual
destruction of the subject of litigation, was ineffectual to save the
defendant from condemnation if it happened after Litis contestatio.
Finally, however, the doctrine prevailed that, in the absence of
Mora, such an event was effectual for the absolution of the defendant,
even when it occurred after Litis contestatio. See 3 § 180, comm.
In real actions, where the condemnation or absolution of the
defendant was left to the arbitrium of the judge, as in the formula
petitoria, the purely casual destruction of an object in the hands
of a bona fide possessor, even when it happened after joinder of issue,
produced the absolution of the defendant, on the ground that im-
possibilium non est obligatio. It is to be observed, however, that
the circumstances arising subsequent to Litis contestatio effectual for
the absolution of the defendant in a real action are limited to those
which destroy the Obligation engendered by Litis contestatio. The
defendant, that is to say, is subject to condemnation in damages in
spite of his having acquired the plaintiff's property by usucapion
completed after Litis contestatio (for, as we have seen, usucapion
was not interrupted by Litis contestatio), in spite of the extinction
of the plaintiffs servitude by non-usus completed after the same date,
in spite similarly of casual destruction of the subject in his hands,
he being mala fide possessor or after mora, and in spite of destruction
by his culpa, he being bona fide possessor.
Subject to this limitation, the rule was universal : omnia judicia
esse absolutoria : i. e. all classes of action, real as well as personal,
stricti juris as well as bonae fidei, whatever the original right of the
plaintiff, may terminate by a judgment in favour of the defendant
in consequence of some event (casual destruction of the subject,
voluntary restitution by the defendant, &c.) subsequent to Litis
contestatio. Cf. Vangerow, § 160.
The words in the text ' quia formulae verbis id ipsum exprimatur '
refer to the direction to the judex in the formula petitoria not to
condemn the defendant if he restores the thing, which is the object
of the action, to the plaintiff. Compare what has been stated
respecting actiones Arbitrariae, § 47, comm.
556
DE ACTIONIBVS
[iv. §§ 115-137.
§ 115. Sequitur ut de excep-
tionibus dispiciamus.
Inst. 4, 13, pr.
§ 116. Conparatae sunt au-
temexceptiones defendendorum
eorum gratia cum quibus agitur.
saepe enim accidit, ufc quis iure
ciuili teneatur, sed iniquum sit
eum iudicio condemnari.
Inst. 1. c.
§ 116 a. Veluti (si) stipu-
latus sim a te pecuniain tam-
quam credendi causa numera-
turus, nee numerauerim; nam
earn pecuniam a te peti posse
certuin est, dare enim te oportet,
cum ex stipulatu teneris ; sed
quia iniquum est te eo nomine
condemnari, placet per excep-
tionem doli mali te defendi
debere. Inst. 4, 13, 1.
§ 116 b. Item si pactus fuero
tecum, ne id quod mini debeas
a te joetam, nihilo minus [id
ipsum] a te petere possum dari
mini oportere, quia obligatio
pacto conuento non tollitur;
sed placet debere me petentem
per exceptionem pacti conuenti
repelli. Inst. 4, 13, 3.
§ 117. In his quoque actioni-
bus quae (non} in personam
sunt exceptiones locum habent.
ueluti si metu me coegeris aut
dolo induxeris, ut tibi rem
aliquam mancipio darem; nam
si earn rem a me petas, datur
mihi exceptio, per quam, si
metus causa te fecisse uel dolo
malo arguero, repelleris.
§ 117 a. Item si fundum
litigiosum sciens a non possi-
§ 115. We have next to ex-
amine the nature of Exceptions.
§ 116. Exceptions have been
established for the protection of
the defendant, as it is often the
case that a person is under a
liability by the civil law when
justice forbids his condemnation.
§ 116 a. If, for instance, I
have stipulated that you shall
pay me a sum of money, on
account of my advancing you the
money, and then never advanced
it, I can certainly sue you for the
money, as by civil law you ought
to pay, being bound by the stipu-
lation ; but it would be iniquitous
that you should be condemned
on this account, and therefore it
is established that you may de-
fend yourself against my claim
by the exception of Fraud (doli).
§ 116 6. Or if I informally
agree not to sue you for a debt
you owe me, my right to assert
in the intentio of the formula
that you are bound to pay me
nevertheless continues unim-
paired, because a mere pact can-
not extinguish a civil obligation,
but it is held that my action
would be defeated by the ex-
ception of pact or agreement
between the parties.
§ 117. Actions which are not
exclusively maintainable against
one definite person also admit of
exceptions ; for instance, if by
threats of violence or by fraud
you compelled or induced me to
convey the ownership of a thing
to you by mancipation, and you
sue me for it by vindication,
I am granted an exception of
intimidation or fraud, which, if
I prove, I defeat your claim.
§ 117 a. Or if you knew land
was an object of litigation, and
iv. §§ 115-137.] DE EXCEPTION1BVS
557
dente emeris eumque a possi-
dente petas, opponitur tibi
exceptio, per quam omni modo
summoueris.
§ 118. Exceptiones autem
alias in edicto praetor habet
propositas, alias causa cognita
accommodat. quae omnes uel
ex legibus uel ex his quae legis
uicem optinent, substantiam
capiunt, uel ex iurisdictione
praetoris proditae sunt.
Inst. 4, 13, 7.
§ 119. Omnes autem excep-
tiones in contrarium concipi-
untur, quam adfirmat is cum
quo agitur. nam si uerbi gratia
reus dolo malo aliquid actorem
facere dicat, qui forte pecuniam
petit quam non numerauit, sic
exceptio concipitur si IN EA RE
NIHIL DOLO MALO A. AGERII
FACTVM SIT NEQVE FIAT: item
si dica£ contra pactionem pecun-
iam peti, ita concipitur exceptio
SI INTER A. AGERIVM ET N.
NEGIDIVM NON CONVENIT, NE EA
PECVNIA PETERETVR; et deni-
que in ceteris causis sirniliter
concipi solet; ideo scilicet quia
omms exceptio obicitur quidem
a reo, sed ita formulae inseritur,
utcondicionalem faciat condem-
nationem, id est ne aliter iudex
eum cum quo agitur condemnet,
quam si nihil in ea re qua
de agitur dolo actoris fac-
tum sit; item ne aliter iudex
eum condemnet, quam si nullum
pactum conuentum de non
petenda pecunia factum /uerit.
§ 120. Dicuntur autem ex-
ceptiones aut peremptoriae aut
dilatoriae. Inst. 4, 13, 8.
§121. Peremptoriae sunt quae
perpetuo ualent nee euitari pos-
sunt, ueluti quod metus causa
bought it of a person not in
possession, when you claim it of
a person in possession you are
entirely defeated by means of an
exception.
§ 118. Some exceptions are
published by the praetor in his
edict, while others are granted by
him after taking special cogni-
zance of the case, while all are
either founded on statute or on
what is equivalent to statute, or
on the praetor's jurisdiction.
§ 119. But all exceptions take
the form of a supposition contrary
to what the defendant affirms ; if,
for example, the defendant im-
putes fraud to the plaintiff in
that he sues for money which he
never advanced, the exception is
thus expressed : ' If in that matter
there was and is no fraud of
Aulus Agerius.' Again, if he
allege an informal agreement not
to claim the money, the exception
is thus formulated : ' If Aulus
Agerius and Numerius Negidius
did not agree that the money
should not be demanded ; ' and
so in other cases. For every
exception is an objection alleged
by the defendant, but is so in-
serted in the formula as to make
the condemnation conditional ;
that is, the judex is instructed
not to condemn the defendant
unless there has been no fraud of
the plaintiff in this transaction,
or unless there has been no
informal agreement not to sue
for the money.
§ 120. Exceptions are either
peremptory or dilatory.
§ 121. Peremptory exceptions
are such as are always available
and cannot be avoided by post-
558
DE ACTIONIBVS
[iv. §§115-137.
aut dolo malo, aut quod contra
legem senatusue consultum fac-
tum est, aut quod res iudicata
est uel in iudicium deducta est,
item pacticonuentiquod/actum
est, ne omnino pecunia pete-
retur. Inst. 4, 13, 9.
§ 122. Dilatoriae sunt excep-
tiones quae ad tempus ualent,
uelut^ illius pacti conuenti quod
factum est uerbi gratia, ne
intra quinquennium peteretur ;
finite enim eo tempore non
habet locum exceptio. cui
similis exceptio est litis diui-
duae et rei residuae. nam si
quis partem rei petierit et intra
eiusdem praeturam reliquam
partem petat, hac exceptione
summouetur quae appellatur
litis diuiduae ; item si is, qui
cum eodem plures lites habe-
bat, de quibusdam egerit, de
quibusdam distulerit, ut ad
alios iudices eant, si intra eius-
dem praeturam de his quas
distulerit, agat, per hanc ex-
ceptionem quae appellatur rei
residuae summouetitr.
Inst. 4, 13, 10.
§ 123. Obseruandum est au-
tem ei cui dilatoria obicitur
exceptio, ut differat actionem ;
alioquin si obiecta exceptione
egerit, rem perdit ; non enim
post illud tempus, quo integra
re (earn) euitare poterat, adhuc
ei potestas agendi superestf re
in iudicium deducta et per
exceptionem perempta.
Inst. 1. c.
poning the action, as the exception
of intimidation, or of fraud, or
that there has been a contra-
vention of the statute (lex) or of
the senatusconsultum, or that the
case has been previously decided
(exceptio rei judicatae), or brought
to trial (exceptio rei in judicium
deductae), or that there has been
a formless agreement not to sue
for the debt (exceptio pacti con-
venti).
§ 122. Dilatory exceptions are
such as merely avail the defendant
for a time, such as exception of
informal agreement that a debt
shall not be sued for within five
years, for at the end of five years
the exception ceases to be plead-
able. Of a similar nature is the
exception of divided claim or of
the claims left over (litis dividuae
et rei residuae). Thus after suing
for part of a debt if a man sue
for the remainder in the same
praetorship, he is barred by this
exception (litis dividuae). Or,
when a man who has several
claims against the same de-
fendant brings some actions
and postpones others in order
to come before new judices, if
within the same praetorship he
bring any of the postponed
actions, he is met by the ex-
ception of claim left over (rei
residuae).
§ 123. A plaintiff liable to a
dilatory exception should be
careful to postpone his action,
for if he brings his action and
the exception is opposed to it,
this is fatal to his claim ; for as
this has been brought to trial and
extinguished by the exception
being opposed to it, he has lost
his right to sue on it, even after
the time has elapsed when if the
matter had been res integra he
would have escaped from being
met by the exception.
iv. §§ 115-137.] DE REPLICATIONIBVS
559
§ 124. Non solum autem ex
tempore, sed etiam ex persona
dilatoriae exceptiones intelle-
guntur, quales sunt cognitoriae :
ueluti si is qui per edictum
cognitorem dare non potest
per cognitorem agat, uel dandi
quidem cognitoris ius habeat,
sed eum det cui non licet
cognituram suscipere. nam si
obiciatur exceptio cognitoria,
si ipse talis erit, ut ei non
liceat cognitorem dare, ipse
agere potest ; si uero cognitori
non liceat cognituram susci-
pere, per alium cognitorem
aut per semet ipsum liberam
habet agendi potestatem, et tarn
hoc quam illo modo euitare
(potest) exceptionem ; quodsi
dissimulauerit earn et per cogni-
torem egerit, rem perdit.
Inst.4,13, 11.
§ 125. Sed peremptoria qui-
dem exceptione si reus per
errorera non fuerit usus, in
integrum restituitur adiciendae
exceptionis gratia ; dilatoria
uero si non fuerit usus, an in
integrum restituatur, quaeritur.
§ 126. Interdum euenit, ut
exceptio, quae prima facie iusta
uideatur, inique noceat actori.
quod cum accidat, alia adiec-
tione opus est adiuuandi actoris
gratia ; quae adiectio,replicatio
uocatur, quia per earn repli-
catur atque resoluitur uis ex-
ceptionis. nam si uerbi gratia
pactus sum tecum, ne pecuniam
quam mihi debes a te peterem,
deinde postea in coutrarium
pacti sumus, id est ut petere
mihi liceat, et, si agam tecum,
excipias tu, ut ita demum mihi
§ 124. An exception is con-
sidered to be dilatory not only
in respect of time but also on
personal grounds, such as those
which relate to the office of
cognitor ; for instance, if a person
sues by means of a cognitor who
is disabled by the edict from
appointing one, or if he is able
to appoint a cognitor, but appoints
some one who is not allowed to
serve the office. If the exception
to a cognitor (exceptio cognitoria)
is pleaded, the principal dis-
abled from appointing a cognitor
can himself carry on the action
on his own account, or if one
person is disabled from acting
as cognitor, the principal can
carry on the action by employing
another, or by suing on his own
account, and in either way avoid
the exception ; but if he disregard
the matter and continues to carry
on the action by the cognitor, he
loses his cause.
§ 125. If a peremptory ex-
ception be inadvertently omitted
by the defendant, the mistake
is set right by the remedy of in
integrum restitutio, the defendant
being thus allowed to add the excep-
tion to the formula ; but whether
the same is true of a dilatory excep-
tion is a matter of controversy.
§ 1 2 6. Sometimes an exception,
which in the absence of counter
allegations seems prima facie to
be just to the defendant, is unjust
to the plaintiif, and then, to pro-
tect the plaintiff, the praetor adds
to the instructions a clause called
Eeplication, because it is an
undoing and counteraction of
the force of the exception. If,
for instance, after we informally
came to a contrary agreement
that I should not sue you for
a debt, we agreed that I might
be allowed to sue, and then,
when I sue you, you plead the
560
DE ACTIONIBVS
[iv. §§ 115-137.
condemneris, si NON CONVEN-
ERIT, NE EAM PECVNIAM PETE-
REM, nocet mihi exceptio pacti
conuenti ; namque nihilo minus
hoc uerum manet, etiamsi pos-
tea in contrarium pacti sumus ;
sed qum iniquum est me excludi
exceptione,replicatio mihi datur
ex posteriore pacto hoc modo
SI NON POSTEA CONVENIT, VT
MIHI EAM PECVNIAM PETERE
HCERET. Inst. 4, 14, pr.
§ 126 a. Item si argentarius
pretium rei'quae in auctionem
uenerit persequatur, obicitur
ei exceptio, ut ita demum
emptor damnetur, si ei res
quam emerit, tradita est ; et
est iusta exceptio ; sed si in
auctione praedictum est, ne
ante emptori (res) traderetur,
quam si pretium soluerit, repli-
catione tali argentarius adiu-
uatur AVT SI PRAEDICTVM EST,
NE ALITER EMPTORI RES TRA-
DERETVR, QVAM SI PRETIVM
EMPTOR SOLVERIT.
§ 127. Interdum autem
euenit, ut rursus replicatio,
quae prima facie iusta sit,
inique reo noceat. quod cum
accidat, adiectione opus est
adiuuandi rei gratia, quae
duplicatio uocatur.
Inst. 4, 14,1.
§ 128. Et si rursus ea prima
facie iusta uideatur, sed propter
aliquam causam inique actori
noceat, rursus adiectione opus
est qua actor adiuuetur, quae
dicitur triplicatio.
Inst. 4, 14, 3.
§ 129. Quarum omnium ad-
iectionum usum interdum etiam
informal agreement that you
should only be condemned in
case there has been no agree-
ment that I should not sue,
such exception stands in the way
of my claim, for the fact of the
first agreement remains true,
although we subsequently came
to a contrary agreement ; but, as
it would be unjust that I should
be defeated by the exception, I
am allowed to reply by pleading
the subsequent agreement, thus :
' If there was no subsequent
agreement that I might sue for
that money.'
§ 126 a. So if a banker sue for
the price of goods sold by auction,
he may be met by the exception
that the purchaser is only to be
condemned in the action if the
thing which he has bought has
been delivered, and this is prima
facie a just exception. But if it was
a condition of the sale, that the
goods should not be delivered to
the purchaser before payment of
the purchase-money, the banker is
permitted to insert the Eeplicatio :
' or if it was a condition of the
sale that the goods should not be
delivered till the price was paid.'
§ 127. But sometimes a Repli-
catio, though prima facie just,
unjustly injures the defendant ;
and then, to protect the defendant,
a clause has to be added called
Duplicatio (Eejoinder).
§ 128. And again, if this, though
prima facie just, on some ground
or other unjustly injures the
plaintiff, for his protection an-
other clause in addition is required
called Triplicatio (surrejoinder).
§ 129. And sometimes further
additions are required by the
iv. §§ 115-137.] DE REPLICATIONIBVS
561
multiplicity of circumstances by
which dispositions may be suc-
cessively or contemporaneously
affected (Eebutter and Surre-
butter).
§ 130. We next proceed to
notice the Praescriptio, a clause
designed for the protection of the
plaintiff.
§ 131. For it often happens
that one and the same obligation
obliges a person to render some
performance to us now and some
performance at a future time.
For example, when we have
stipulated for an annual or
monthly payment of a certain
amount of money, at the end of
a year or month there is an
obligation to make to us a
corresponding payment of money
for this time ; but in respect
of future years, although an ob-
ligation is held to have been
contracted, no payment has yet
become due. If, then, we wish
to claim what is at present due,
and to bring the matter to trial,
at the same time leaving the
claim to future performance of
the obligation untouched, we
must, in bringing the action,
employ this Praescriptio : ' Let
the action relate exclusively to
what is now due.' Otherwise, if
we sue without this Praescriptio,
the indefinite Intentio, 'What-
ever it be proved that Numerius
Negidius ought to convey to or
perform for Aulus Agerius,' brings
our whole right to future as well
as to present payment before
the judex, and, whatever pay-
ment may be due in future, we
only recover what is due at the
time of joinder of issue, and
are barred from any subsequent
action on account of the re-
mainder.
§ 131 a. Item si uerbi gratia § 131 a. So again if we sue
WHITTUCK Q 0
ulterius quam diximus uarietas
negotiorum introduxit.
§ 130. Videamus etiam de
praescriptionibus quae receptae
sunt pro actore.
§ 131. Saepe enim ex una
eademque obligatione aliquid
iam praestari oportet, aliquid
in futura praestatione est :
ueluti cum in singulos annos
uel menses certain pecuniam
stipulati fuerimus ; nam finitis
quibusdam annis aut mensibus
hums quidem temporis pecu-
niam praestari oportet, futu-
rorum autem annorum sane
quidem obligatio contracta in-
tellegitur, praestatio uero adhuc
nulla est. si ergo uelimus id
quidem quod praestari oportet
petere et in indicium deducere,
futuram uero obligationis prae-
stationem in integro relin-
quere, necesse est ut cum hae
praescriptione agamus EA RES
AGATVR CVIVS REI DIES FV7T ;
alioquin si sine hac praescrip-
tione egerimus, ea scilicet for-
mula qua incertum petimus,
cuius intentio his uerbis con-
cepta est QVIDQVID PARET N.
NEGIDIVM A. AGEEIO DARE
FACERE OPORTERE, totam obli-
gationem, id est etiam futuram
in hoc indicium deducimus, et
quae ante temjpus obligatio
562
DE ACTIONIBVS [iv. §§ 115-137.
ex empto agamus, ut nobis
fundus mancipio detur, debe-
mus hoc modo praescribere EA
RES AGATVR DE FVNDO MANCI-
PANDO, ut postea, si uelijmus
uacuam possessionem nobis
tradi, *trad — | 1 — sumus,
totius illius iuris obligatio ilia
incerjta actione QVIDQVID OB
EAM EEM N. NEGIDIVM A. AGEKIO
DAEE FACERE OPORTET, per in-
tentionem consumitur,ut postea
nobis agere uolentibus de uacua
possessione tradenda nulla su-
persit actio.
§ 132. Praescriptiones autem
appellatas esse ab eo, quod
ante formulas praescribuntur,
plus quam manifestum est.
§ 133. Sed his quidem tern-
poribus, sicut supra quoque
notauimus, omnes praescrip-
tiones ab actore proficiscuntur.
olim autem quaedam et pro reo
opponebantur, qualis ilia erat
praescriptio EA RES AGATVR,
SI IN EA BE PRAEIFDICIVM
HEREDITATI NON FIAT, quae
nunc in speciem exceptionis
deducta est et locum habet,
cum petitor hereditatis alio
genere iudicii praeiudicium he-
reditati faciat, ueluti | cum sin-
gulas res peta£ ; est enim ini-
quum per unius rei —
(25 uersus in 0 legi nequeunt)
§ 134. — intentions formulae
upon a contract of purchase (actio
ex empto) for the conveyance of
land by mancipation, we must
prefix the Praescriptio, ' Let the
action relate exclusively to the
mancipation of the land,' in
order that subsequently, when
we wish vacant possession of the
land to be delivered to us, we
may be able to sue again on the
contract of purchase for delivery
of possession ; as, without this
Praescriptio, all our right under
that contract is included in the
uncertain Intentio, ( Whatever on
that ground Numerius Negidius
ought to convey to or perform
for Aulus Agerius,' and is ex-
hausted by the joinder of issue in
the first action ; so that after-
wards, when we want to sue for
the delivery of vacant possession,
we have no right of action re-
maining.
§ 132. The Praescriptio is so
named because it precedes the
formula, as hardly needs to be
stated.
§ 133. At present, as we pre-
viously noticed, all praescriptions
are initiated by the plaintiff;
though formerly some used to be
put in as a plea of defence by the
defendant, for instance, the Prae-
scriptio, ' Let this question be
tried if it does not prejudice the
question of inheritance/ which
clause is now transformed into an
exceptio, and is employed when
the claimant of an inheritance
brings another action which pre-
judges the right to the inheri-
tance ; as, for instance, if he sues
for particular things belonging to
the inheritance ; for it would be
unjust [to make the decision of
an action respecting an entire
inheritance a mere corollary of
a decision respecting a less im-
portant issue].
§ 134. If an action is brought
iv. §§ 115-137.] DE PRAESCRIPTIONIBVS
563
det — m est, cui dari oporteat ;
et sane domino d&ri oportet
quod seruus stipulatur; at in
praescriptione de/acto quaeri-
tur, quod secundum naturalem
significationem uerum esse
debet.
§ 135. Quaecumque autem
diximus de seruis, eadem de
ceteris quoque personis quae
nostro iuri subiectae sunt dicta
intellegemus.
§ 136. Item admonendi su-
mus, si cum ipso agamus qui
incertum promiserit, ita nobis
formulam esse propositam, ut
praescriptio inserta sit formulae
loco demonstrationis hoc modo
IVDEX ESTO. QVOD A. AGERIVS
DE'N. NEGIDIO INCERTFJf STIPF-
LATVS EST, CVIVS REI DIES FVIT,
QVIUQVID OB EAM REM N. NEGI-
DIVM A. AGEEIO DARE FACERE
OPORTET et reliqua.
§ 137. Si cum sponsore aut
fideiussore agatur, praescribi
solet in persona quidem spon-
soris hoc modo EA RES AG^ITVR,
QVOD A. AGERIVS DE L. TITIO
INCERTVM STIPVLATVS EST, QVO
NOMINE N. NEGIDIVS SPONSOR
EST, CVIVS REI DIES FVIT, in
persona uero fideiussoris EA
RES AGATFR, QVOD N. NEGIDIVS
PRO L. TITIO INCERTVM FIDE
SVA ESSE IVSSIT, CVIVS EEI DIES
FVIT ; deinde formula subici-
tur.
on a stipulation made by a slave,
the intention names the person
entitled to recover, that is, the
master ; while the prescription
gives the true history of the facts
relating to the contract.
§ 135. What has been said of
slaves applies to all persons sub-
ject to the power of another.
§ 1 36. We must further remark,
that when a person who has pro-
mised something uncertain in
amount is sued, the formula
should contain a Praescriptio in
place of a Demon stratio, thus:
'Let C D be judex. Whereas Au-
lus Agerius stipulated for some-
thing uncertain from Numerius
Negidius, PAYMENT FOR WHICH is
DUE AT PRESENT, whatever pay-
ment in respect of this matter
Numerius Negidius ought to make
over to or perform for Aulus
Agerius, &c.'
§ 137. When a sponsor or fide-
jussor is sued, in the case of the
sponsor the common form of
Praescriptio is as follows : ' LET
THIS BE THE SUBJECT OP THE
ACTION that Aulus Agerius has
stipulated for something of un-
certain amount from Lucius
Titius, of which stipulation Nu-
merius Negidius was sponsor IN
RESPECT OF THE AMOUNT EXCLU-
SIVELY ON ACCOUNT OF WHICH
PERFORMANCE IS NOW DUE ; ' in
the case of a fidejussor : ' LET THE
SUBJECT OF THE ACTION be this
that Numerius Negidius has
guaranteed as fidejussor for
Lueius Titius something of un-
certain amount, IN RESPECT OF
THAT EXCLUSIVELY WHICH CAN
NOW BE CLAIMED ; ' and then
follows the rest of the formula.
003
564 DE ACTIONIBVS [iv. §§ 115-137.
An explanation of the nature of Exceptions requires to be based
on a review of the general incidents of litigation.
In every action there is some contention, allegation, or averment
of a plaintiff which is met or encountered by some contention,
allegation, or averment of a defendant.
The contention of the plaintiff contained in the intentio is the
assertion of some right of the plaintiff : e. g. in a vindicatio or real
action, the assertion of dominion or jus in re (si paret illam rem Auli
Agerii esse) : in a personal action, the assertion of an obligation or
jus in personam (si paret Numerium Negidium Aulo Agerio illam
rem dare oportere). In an action with a formula in factum concepta
there is an implicit or indirect assertion of a right, although explicitly
and directly the intentio only asserts the fact which forms the title
on which such right is founded. In the wording of the formula the
right of the plaintiff appears as an hypothesis ; because the formula or
instruction to the judex is a hypothetical command, expressed in a
sentence of which the intentio forms the antecedent or protasis, and
the condemnatio the consequent or apodosis.
The contention of the defendant is either
(A) a NEGATION of the alleged right of the plaintiff, or
(B) an affirmation of a COLLIDING, countervailing right of the
defendant whereby the alleged right of the plaintiff is counterpoised
and counteracted.
The denial of the plaintiffs right again admits of division :
1. It is either a simple and absolute negation of the plaintiffs
right : an assertion of its non-existence even in the past : an affirma-
tion of its original nullity ; or
2. A qualified or relative negation. Admitting or assuming that
it once existed, it is a negation of its present existence : an affirmation
of its subsequent destruction, nullification, or avoidance.
Accordingly a defendant had three lines of defence :
I. The assertion of the original NULLITY of the plaintiffs right.
This might be either a denial (traverse) of the fact, whether a
disposition or a trespass, on which the plaintiffs right was alleged to
be founded (general issue of English law).
Or the denial of the law by which such a right was said to be
annexed to such a fact (demurrer of English law). The question
whether in the formulary system a pure issue of law was decided
by the praetor in jure (denegatio actionis, when the demurrer was
sustained ; datio actionis, when it was overruled) without reference
to a judex, is immaterial to our present purpose, which is merely
an exhaustive view of the various modes of defence open to a
defendant.
Or it might be an admission of the fact alleged, with an allegation
iv. §§115-137.] DE EXCEPTION1BVS 565
of a further fact whereby the efficacy of the admitted fact to found
a right was avoided. E. g. the averment of the infancy or lunacy
of a party to a disposition (confession and avoidance of English law,
producing a plea in justification).
II. The averment of a subsequent nullification or EXTINCTION of
the plaintiffs right, admitted to have previously existed (confession
and avoidance, i. e. confession not only of a fact, as above, but of a
right, with an averment of its subsequent abolition, producing a plea
in discharge), e. g. the averment of solutio, acceptilatio, novatio.
III. The objection of a colliding right of the defendant, whereby
the right of the plaintiff is not avoided or extinguished but counter-
worked or restrained from operation : e. g. resistance to an alleged
right of a stipulator by putting forward as a counter right that the
money in consideration of which the stipulation had been entered
into had not been paid, or that the defendant had acquired by
informal agreement the right of not being sued on the stipulation
(confession of a fact or right and, not avoidance but, COUNTERACTION).
This third mode of defence is called Exceptio. Accordingly exceptio
may be rendered a Counteractive or obstructive, as opposed to a
Negative or destructive, plea.
The allegation of an exceptio does not preclude the defendant
from contesting the intentio: Non utique existimatur confiteri de
intentione adversarii quocum agitur, quia exceptione utitur, Dig. 44,
1, 9, and the intentio must be proved by the plaintiff before the defen-
dant is called upon to prove the exceptio, Cod. 8, 35, 9 : so that,
instead of confession and counteraction, the exception should be
described as a supposition or assumption and counteraction of the
plaintiffs right.
i. Examples of the first line of defence are, in a real action, the
negation of the traditio on which a plaintiff founds his claim of
ownership : in a personal action, negation of the contract or delict on
which the plaintiff founds his claim of obligation : in either real or
personal action, avoidance of the title alleged by the plaintiff by allega-
tion of the incapacity, as e. g. the lunacy of an alienor or contractor.
In hereditatis petitio, the original nullity of a will is pleaded, or the
plaintiffs testamentary title is avoided, by averment of the preterition
by the testator of a suus heres. A title by contract may be avoided
by indicating a limitation in respect of time or place or condition or
alternative.
In general the grounds of the original nullity of a disposition are
either :
(a) Want of the conditions necessary to its validity, whether
from absence of the personal qualities required in the disposer, or
from absence of the intention which is of the essence of a disposition
566 DE ACTIONIBVS [iv. §§ 115-137.
or of any other of the essentialia negotii, or from absence of the
prescribed form in which an intention is required to be declared.
(6) Or prohibition of the disposition by positive law.
The antagonism of the law to a particular kind of disposition
might express itself in various ways :
(1) It might prohibit a disposition, but if it was entered into
and carried out in a particular way neither rescind it nor impose
a penalty on account of the prohibition being disregarded. Such a
law is perhaps what Ulpian, 1,1, denominates an imperfecta lex: it
is exemplified by lex Cincia, B. c. 204, which prohibited gifts above
a certain amount.
(2) It might prohibit a disposition but, instead of declaring it
invalid, impose a penalty on the person by whom it was enforced.
This was the method of lex Furia testamentaria, which imposes a
fourfold penalty on those who take a legacy above a certain sum,
and which Ulpian, 1. c., quotes as an example of minus quam perfecta
lex, 2 § 225, comm.
(3) It might prohibit a disposition but only strike it with a partial
invalidity : allowing it to create a valid right, but making such right
subject to be deprived of its efficacy by Exceptio. Such an exceptio
might be of the weaker class, only barring obligatio civilis, e. g. ex-
ceptio Sc. Macedonian!, 3 §§ 90-91, comm. ; or of the stronger class,
barring both civilis and naturalis obligatio ; e. g. exceptio Sc.
Vellaeani, 3 §§ 110-127, comm.
(4) It might declare the prohibited disposition to be entirely
invalid. Such an ordinance is called by Ulpian perfecta lex, and is
exemplified in lex Falcidia, 2 § 227.
Informality, e.g. omission to institute or disinherit suus heres,
mancipation without the required number of witnesses, donation
without record (insinuatio), produces Nullification.
The second of these paths of prohibition ceased to be trodden after
an interpretative law of Theodosius II, A. D. 439. A law prohibiting
municipal senators (curiales) from the management (procuratio) of
other persons' estates had been evaded by means of simulated leases
(conductio), Cod. 4, 65, 30. In consequence of this, Theodosius
enacted, in substance, that any prohibitive law, even though it con-
tained no express terms of nullification, should be interpreted to
be lex perfecta ; and that any simulated dispositions, whereby a law
was attempted to be evaded, should be null and void : Nullum enim
pactum, nullam conventionem, nullum contractum inter eos videri
volumus subsecutum, qui contrahunt, lege contrahere prohibente.
Quod ad omnes etiam legum interpretationes tarn veteres quam
novellas trahi generaliter imperamus, ut legis latori, quod fieri non
vult, tantum prohibuisse sufficiat, cetera quasi expressa ex legis
iv. §§115-137.] DE EXCEPTIONIBVS 567
liceat voluntate colligere : hoc est ut ea quae lege fieri prohibentur,
si fuerint facta, non solum inutilia, sed pro infectis etiam habeantur,
licet legis lator fieri prohibuerit tantum nee specialiter dixerit inutile
esse debere quod factum est. Sed et si quid fuerit subsecutum ex eo
vel ob id, quod interdicente lege factum est, illud quoque cassum
atque inutile esse praecipimus, Cod. 1, 14, 5. So in English law
a contract is by implication forbidden and void, when a statute,
without saying that the contract shall be void, inflicts a penalty
on the maker ; for a penalty implies a prohibition. Pollock, Con-
tract, p. 293, 7th ed. In some cases statutes prohibited transactions
of a particular kind without however expressly declaring them void.
In such cases the transaction was not ipso jure void, but the person
sued on it could plead an exceptio founded on the statute. Thus
the Sc. Macedonianum and Sc. Vellaeanum render the dispositions
which contravene them liable to Exceptio, which is inconsistent
with nullification.
2. Examples of the second line of defence are in real action the
averment of a subsequent loss of ownership by dereliction or
usucapion or alienation, or loss of servitus by non-usus : in here-
ditatis petitio the avoidance of a valid will by agnatio postumi or
by the execution of a later will : in personal action the extinction
of a debt by solutio, acceptilatio (formal release), novatio.
In general, the avoidance of a right may either be produced by
the very disposition by which the right is originated, viz. by the
fulfilment of a resolutive condition which it contains : or by some-
thing external, e. g. by judgment, when res judicata operates not as
a counteractive but as an extinctive plea, 3 § 180 : or by a contrary
disposition, e. g. dereliction of property, repudiation of the delatio
of legatum or hereditas. In respect of contrary dispositions the
general rule obtains that to produce complete invalidity the second
disposition must be of similar form to the first ; otherwise it only
produces incomplete invalidity (exceptio, a counteractive plea) : Nihil
tarn naturale est, quam eo genere quidque dissolvere, quo colliga-
turn est: ideo verborum obligatio verbis tollitur: nudi consensus
obligatio contrario consensu dissolvitur, Dig. 50, 17, 35. Thus, a
stipulation is extinguished by a formal release (acceptilatio), but
only counteracted by an informal release (pactum de non petendo).
Furtum and injuria were extinguished by nudum pactum, in spite
of the dissimilarity of disposition and tort : offence and reconcilia-
tion, as Kuntze observes, § 632, being regarded as contraries.
Quaedam actiones per pactum ipso jure tolluntur, ut injuriarum,
item furti, Dig. 2, 14, 17, 1. An informal release followed by an
informal revocation (pactum de petendo) is not extinguished but
only counteracted, § 116 a, and Dig. 2, 14, 27, 2.
568 DE ACTIONIBVS [iv. §§ 115-137.
Let us consider what is the effect when a disposition originally
valid is subsequently followed not by a contrary disposition but by
some other circumstance of an adverse or inconsistent character.
Some jurists laid down a rule that any circumstances which would
have prevented such a disposition having a validity, if they had
been present when the disposition was made, invalidate it if they
occur subsequently. Etiam ea quae recte constiterunt, resolvi
putant, cum in eum casum reciderunt, a quo non potuissent con-
sistere, Dig. 45, 1, 98, pr. E.g. a marriage was dissolved when one
of the parties subsequently lost civitas or libertas. But the rule
cannot be stated in this broad way : Non est novum, ut quae semel
utiliter constituta sunt, durent, licet ille casus exstiterit, a quo
initium capere non potuerunt, Dig. 50, 17, 85, 1. Etsi placeat ex-
tingui obligationem, si in eum casum incident, a quo incipere non
potest, non tamen hoc in omnibus verum est, Dig. 45, 1, 40, 2.
E. g. a contract is not dissolved by the lunacy of one of the parties.
Similarly a Roman testament loses its validity when a testator loses
civitas or libertas, but not when he becomes a lunatic. It seems
then that no general rule can be applied.
A change in the opposite direction, i. e. from circumstances in-
consistent, to circumstances consistent, with a disposition, will not,
as a general rule, validate the disposition, or produce what is called
convalescence: Quod initio vitiosum est, non potest tractu tern-
poris convalescere, Dig. 50, 17, 29. Omnia, quae ex testamento
proficiscuntur, ita statum eventus capiunt, si initium quoque sine
vitio ceperint, Dig. 50, 17, 201. Catoniana Eegula sic definit, quod,
si testament! facti tempore decessisset testator, inutile foret, id
legatum, quandocumque decesserit, non vale re, Dig. 34, 7, 1, pr.
(cf. 2 § 244). But though this generally applied to unconditional
legacies, it was not true of institutions of an heir (hereditas), Dig.
1. c. 3, nor of all other dispositions. (It is to be noticed that if a
disposition was originally invalid on account of want of capacity of
a party to it the defect is not cured by the party subsequently
becoming capable, a principle equally applicable in the case of the
heir as in that of a legatee, cf. 2 § 123, Inst. 2, 13, pr.) E. g. when
a non-proprietor alienes and subsequently becomes proprietor, the
alienation, originally invalid, convalesces, and the purchaser becomes
proprietor without a new tradition, Dig. 41, 3, 42, Windscheid,
1 § 83.
The removal of an exception, e. g. the voluntary ratification of
a contract that was originally vitiated by force or fraud, has prac-
tically the same effects as convalescence ; but cannot properly be
called convalescence, because here the disposition, which is supple-
mented by a subsequent agreement between the parties, is not
iv. §§ 115-137.] DE EXCEPTIONIBVS 569
originally null and void, bu"t only liable to counteraction. Accord-
ingly in such a case the plaintiff's right would require to be enforced
by Replicatio.
3. Exceptions or counteractive pleas, which are the defendant's
third means of defence, are either based on the substantive code or
on the code of procedure.
(a) Examples of exceptions based on the code of procedure are :
that of the case having already reached the stage of Litis contestatio
(exceptio rei in judicium deductae) : the objection to a minor issue
being tried, while a connected major issue from which it cannot be
separated is undecided (exceptio praejudicialis), e. g. exceptio quod
praejudicium non fiat hereditati : objection to the appointment of
a particular procurator by the plaintiff (exceptio cognitoria, pro-
curatoria), § 124.
(b) Examples of exceptions based on the material code are :
In the department of domestic or family law, the exception pro-
tecting freedmen against the oppression of their patrons, that is,
against a penal bond which a patron had forced his freedman to
enter into as security for his good conduct (exceptio onerandae liber-
tatis causa), Dig. 44, 5, 1 : or protecting marital rights against
paternal rights ; i. e. protecting the right of the husband to the
society of the wife against her father who endeavours by exer-
cising his patria potestas to break up a united household, Dig. 43,
30, 1, 5.
In the department of law relating to real rights the defendant in
a vindicatio by putting forward the exceptio rei venditae et traditae
may counterpoise the plaintiffs quiritary title by objecting his own
bonitary title, see 2 §§ 40-61, comm. : or he may allege as a counter-
acting right against the plaintiff's dominion a jus in re, e. g. pignus,
Dig. 10, 3, 6, 9, or superficies, Dig. 43, 18, 1, 4. In the actio
Publiciana when the purchaser from a non-proprietor endeavours
to recover the thing from the true proprietor, the defendant may
oppose ownership to bona fide acquisition of possession by putting
forward the exceptio dominii : Si ea res possessoris non sit, Dig.
6, 2, 1 7, said to be the only exception which in form alleges a right
of the defendant, whereas all other exceptions, though they too are
all virtually and in effect allegations of a right, in external form are
allegations of a fact.
In the department of obligation, as well as of real right, the
defendant's counteractive plea may be an allegation of Force or
Error or that of obligation Formless release (exceptio pacti conventi).
Force and Error, as we have seen, may make a disposition voidable,
not void.
Although Exceptio is always the allegation of a right of the
570 DE ACTIONIBVS [iv.§§ 115-137.
defendant, the right which it alleges, though in other respects of
the same nature as the right of a plaintiff, is not always sufficiently
energetic to form a ground on which an action might be main-
tained. We have an instance of this inferior energy in the obligatio
naturalis which is generated by nudum pactum, of which we read :
Igitur nuda pactio obligationem non parit sed parit exceptionem,
Dig. 2, 14, 7, 4.
The collision of the rights of the plaintiff and defendant, as
expressed in the intentio and exceptio, arises in the majority of
cases from the opposition of equity (aequitas) to law, jus strictum,
or of jus praetorium to jus civile.
Instances of exceptio founded on jus praetorium are: Exceptio
doli, metus, pacti conventi, § 116, hypothecaria, jurisjurandi.
It is, however, erroneous to suppose, as was done in the first
edition, that, anomalies disregarded, exceptio is always a plea based
on the equitable or praetorian code. This is contrary to the state-
ment of Gaius, § 1 1 8, that exceptio may be based on jus civile, and
refuted by the following examples of exceptions based on civil law :
exceptio dominii, the allegation of civil dominion by the true
proprietor who is defendant in an actio publiciana brought by a
person who acquired possession from a non-proprietor : exceptio
legis Plaetoriae, the allegation of minority. [The lex Plaetoria
did not make minors incapable of contracting an obligation, but
treated any taking advantage of their inexperience as a ground for
relief: otherwise the contracts of minors, like those of impuberes,
would have been null and void as against them from the first, and
its averment would not have fallen as an exceptio under the third
mode of defence, but, as a negation, under the first, like the averment
of being under the age of puberty, 1 §§ 197-200, comm.] : exceptio
legis Cinciae, Frag. Vat. 266, 310, protecting a donor: exceptio nisi
bonis cesserit, arising from the lex Julia, Inst. 4, 14, 4, protecting
an insolvent who has made cessio bonorum : exceptio Sc. Macedoniani,
protecting filiusfamilias against usurers : exceptio Sc. Vellaeani,
protecting women from the consequences of intercessio : exceptio Sc.
Trebelliani, protecting an heir who is merely a trustee to convey the
inheritance to a beneficiary from the pursuit of the creditors, Dig. 15,
2, 1, 8, see 2 § 253.
Let us examine the meaning of ipsum jus as it occurs in the
opposition of actio ipso jure nulla (a right avoided by a destructive
plea) and actio ope exceptionis infirmata (a right counteracted by
an obstructive plea) or other equivalent expressions.
Ipsum jus sometimes denotes jus civile as opposed to jus prae-
torium, e.g. in the phrase actiones quae in aliquem aut ipso jure
conpetunt aut a praetore dantur, § 112: but this cannot be its
iv. §§115-137.] DE EXCEPTIONIBVS 571
signification here ; for the opposition between destruction and
obstruction, avoidance and counteraction, is irrespective of the
opposition between jus civile and jus praetorium. In a case of
avoidance, the plaintiff's claim may be derived not from jus civile
but from jus praetorium, e.g. in actio institutoria, § 71, hypothecaria,
publiciana : and in a case of counteraction the defendant's plea, as
we have seen, may be derived not from jus praetorium but from jus
civile, though such a plea or exception originated and was principally
allowed by the praetor for the purpose of giving effect to grounds
of defence which were not recognized by strict law. Cf. Sohm, § 53.
Ipsum jus as contrasted with exceptio denotes the totality of
the conditions comprehended in the intentio — the totality of the
elements, positive and negative, that constitute the plaintiff's right :
in which definition positive elements are the conditions which call
a right into existence ; negative elements are the absence of any
circumstance which could extinguish an existent right or dismiss it
into non-existence. Exceptio, on the contrary, denotes something
external to the sphere of the conditions of existence of the plaintiff's
right ; denotes the existence of an independent adverse right of
the defendant. Actio ipso jure nulla will denote a right null and
void by the conditions contemplated in the intentio and frequently
expressed by the word oportere: actio exceptionis ope infirmata a
right defeated by conditions external to the intentio. The words :
ipso jure, then, might be .paraphrased by the words : si intentionem
tantum spectes; or treated as equivalent to: ipsius jure or actoris
jure.
The first mode of defence mentioned above denies the existence of
one of the positive constituent elements of the plaintiff's right.
The second mode denies the existence of one of the negative
constituent elements of the plaintiff's right.
The third mode alleges a countervailing right, vested in the
defendant, and generated by a title external to the sphere of the
conditions which constitute the right of the plaintiff as expressed
in the intentio.
In some cases the partition which separates avoidance (ipsum jus)
from counteraction (ope exceptionis) will be extremely thin, and
will consist in some arbitrary appointment of positive law. E. g.
litis contestatio in judicium legitimum produced avoidance, while
litis contestatio in judicium imperio continens only produced counter-
action, 3 § 181.
Some extinctions (ipso jure) of a plaintiff's right, where we might
have expected only counterpoises (ope exceptionis) or counter rights
of a defendant, are to be explained by the fact that there was
a period when Eoman procedure did not recognize Exceptions —
572 DE ACTIONIBVS [iv. §§ 115-137.
defences by positive averment of counterpoising rights — (nee omnino
ita, ut nunc, usus erat illis temporibus exception urn, § 108); but !
required every defence to be in the form of a simple NEGATION —
allegation of the original or subsequent NULLITY of the plaintiffs
claim. Unlike proceedings by Formula, which besides the ipsum
jus of the plaintiff, investigated the counter-claims (Exceptio) of the
defendant, statute-process strictly confined itself to a direct affirma-
tion or denial of the plaintiff's right. At such a period one of the
devices for giving to the defendant the means of defence which he
afterwards had in the form of Exceptio was the introduction into
the Substantive code of certain principles respecting the nullification
of rights which practically answered the purpose of the Exceptions
afterwards introduced into the Adjective code.
An example of such principles is the rule : (Necessariae) impensae
dotem ipso jure minuunt, Dig. 23, 4, 5, 2. A husband when com-
pelled to restore the dower to a divorced wife was fairly entitled
to deduct what he had been obliged to spend for its conservation
during the subsistence of matrimony. To enable the husband to
do this the law EXTINGUISHED the wife's right to an equivalent
portion of the dower, and thus protected the husband as effectually
as if it had given him an Exceptio asserting an independent right
of retention. (It is to be noticed that the actio rei uxoriae for the
recovery of dos, being regarded as an actio bonae fidei, empowered
the judex to take impensae necessariae into account without any
exceptio being added to the formula, cf. Sohm, p. 487.) So the
rule : Legata pro rata portione per legem ipso jure minuuntur,
Dig. 35, 2, 73, 5, gave to an heir the right of retaining his Falcidian
fourth as effectually as he could have done by pleading an Exceptio
legis Falcidiae. Again the rule: Ipso jure minutum esse peculium,
Dig. 19, 1, 30, pr., gave to an heir, when a slave and his peculium
had been bequeathed to a legatee, the right of deducting whatever
the slave owed by naturalis obligatio to the testator as effectually as
if he had been allowed to plead the debt of the slave in an Exceptio,
cf. § 73.
It is remarkable that a husband's right, § 44, cornm., to deduct
from the dower all utiles as opposed to necessariae impensae was
protected by an Exceptio, Dig. 25, 7, 1. As there seems to be no
valid reason for a different treatment of utiles impensae and neces-
sariae impensae, the explanation why the deduction of necessariae ,
was effectuated by Extinction and that of utiles by Exception can
only be found in the hypothesis that the former right was recognized
by the law before, the latter after, Exceptions had been introduced
into the Adjective code. Ihering, § 52.
The statement which we meet with in our sources that com-
iv. §§ 115-137.] DE EXCEPTIONIBVS 573
pensatio or set-off operates ipso jure is one which commentators
have been much embarrassed to explain. (Dig. 16, 2, 21 (Paulus)
Posteaquam id quod invicem debetur ipso jure compensari, ib. 4
and 10. Inst. 4, 6, 30 ut actiones ipso jure minuant. Cod. 4, 31,
14, pr. Compensationes ex omnibus actionibus ipso jure fieri
sancimus.) It is evident that compensation does not operate of
itself, but must be expressly pleaded by the defendant, if he so
chooses. In actiones stricti juris, though not in actiones bonae fidei,
§§ 61, 63, an exceptio had to be inserted in the formula to enable
the judex to take compensatio into account. The exceptio which in
this restricted form seems to have been first granted by a rescript of
Marcus Aurelius was peculiar in this, that its object might be not the
absolution of the defendant, but only the diminution of the condemna-
tion. Ipso jure under these circumstances can, it would seem, only
mean that if compensatio is successfully pleaded, the debt is regarded
as having been pro tan to extinguished from the time when the set-off
came into existence, just as the dos would be considered to have
been diminished from the time when the impensae were incurred.
It is probable, however, that by the law of Justinian the judex had
free power of recognizing compensatio in actions of all kinds and
not only in actiones bonae fidei. Cf. §§ 61-68, comm., Dr. Moyle's
note, Inst. 1. c., Sohm, § 89.
Exceptions are capable of various classifications.
(, As a Negation of the plaintiff's right forms either what we have
called the first mode of defence or the second, according as it is
founded on a fact contemporaneous or subsequent to the plaintiff's
title, so Exceptions rest on facts either contemporaneous or sub-
sequent to those which found the claim of the plaintiff. Examples
of contemporaneous exceptions are exceptio rei venditae ac traditae,
exceptio metus, averring that a disposition on which the plaintiff
relies was originally a valid praetorian title, or that it was a disposi-
tion originally vitiated by duress. Examples of subsequent excep-
tions are the exceptions rei judicatae, longi temporis possessionis,
pacti conventi de non petendo. In a Negative averment the sub-
sequent event is ground of avoidance : in an exception the subsequent
event is ground of counteraction.
Some exceptions can only be employed by a particular defendant
(exceptio personae cohaerens) : an example of this is beneficium
competentiae, which cannot be pleaded by the debtor's sureties or
heirs. Others, and the great majority, are available to all defendants
without distinction (exceptio rei cohaerens).
Some exceptions are only available against a particular plaintiff
(exceptio in personam). E. g. the exceptio doli, Si in ea re nihil
dolo malo actoris factum est, only lies against the person by whose
574 DE ACTIONIBVS [iv. §§ 115-137.
fraud a disposition was vitiated, his donees and universal successors,
in so far as they have been enriched by the dolus ; not against
a singular successor like a vendee (but the assignee of an action is
subject to exceptio doli which was maintainable against assignor).
The majority are equally available against all the world (exceptio in
rem) ; e. g. the exceptio metus, which is expressed impersonally, Si
in ea re nihil metus causa factum est, and lies against all whose title
depends on the vitiated disposition.
The counteraction of the plaintiffs right by exceptio has different
degrees of potency. Some exceptions have the stronger effect and
deprive the plaintiffs right of all efficacy, barring all obligatio both
naturalis and civilis : others have the weaker effect, and though they
deprive the plaintiffs right of obligatio civilis, leave it invested with
obligatio naturalis. Instances of the weaker effect are the exceptio
Sc. Macedoniani, Dig. 14, 6, 10, and beneficium competentiae, Dig.
12, 6, 8. 9. Instances of the stronger effect are exceptio Sc. Vellaeani,
Dig. 12, 6, 40, pr. ; exceptio doli, Dig. 12, 6, 65, 1 ; exceptio metus, Dig.
12, 5, 7 ; exceptio pacti, Dig. 12, 6, 40, 2. The effect of the exceptions
of res judicata and prescription or lapse of time, as we have already
stated, is controverted : but they both apparently have the stronger
operation, except that in real actions prescription or limitation does
not entirely annul the right of the proprietor, and prescription of
pendency, §§ 104, 105, leaves a debtor subject to naturalis obligatio.
In respect of the burden of proof (onus, necessitas probationis) the
following are the leading rules :
The party who asserts a right must prove it, whether the title by
which it was conferred is an affirmative or negative fact : Ei incumbit
probatio qui dicit non qui negat, Dig. 22, 3, 2. Hence the plaintiff, as
a general rule, must prove the intentio : Semper necessitas probandi
incumbit illi qui agit, Dig. 22, 3, 21 : Actore non probante, qui
convenitur, etsi nihil ipse praestat, obtinebit, Cod. 2, 1, 4 : and the
defendant must prove the exceptio : In exceptionibus dicendum est
reum partibus actoris fungi oportere, ipsumque exceptionem velut
intentionem implere, Dig. 22, 3, 19, pr.
But, further, in the second line of defence the proof of the matter
alleged in avoidance is incumbent on the defendant : ut creditor, qui
pecuniam petit numeratam, implere cogitur, ita rursum debitor, qui
solutam affirmat, ejus rei probationem praestare debet, Cod. 4, 19, 1.
In a passage of the Digest this rule is combined with the preceding :
Secundum generalem regulam, quae eos qui opponendas esse
exceptiones adfirmant, vel solvisse debita contendunt, haec ostendere
exigit, Dig. 22, 3, 25, 2.
Moreover in the first line of defence, when it assumes the form
of a confession and avoidance ; e. g. an averment of the lunacy of a
IV. §§115-137.] DE EXCEPTIONIBVS 575
testator ; in other words, when it is contended that a disposition, in
consequence of some exceptional circumstance, had not the validity
which the law presumes ; the proof of this avoiding allegation is on
the defendant, Cod. 6, 36, 5. Bethmann-Hollweg, § 109.
In the middle ages the true exceptio or counteractive plea was
called exceptio juris : the first line of defence, when it assumed the
form of an avoidance, and the second line of defence, whatever its
special nature, were called inappropriately exceptio facti. This shows
that the true nature of exceptio had been forgotten : the similarity,
however, of the three lines of defence in respect of the burden of
proof is probably the reason why they were all called exceptio.
The necessity in order to save the plaintiff from being taken by
surprise of disclosing by the pleadings whether the defendant relies
on the first or second line of defence, e. g. whether he denies that a
debt ever existed, or maintains that it was extinguished (for which
disclosure there was no provision in procedure by formula), is probably
the reason why the second line of defence as well as the third has
been treated as an exceptio (Einrede) in modern Germany. (Of. Civil-
prozessordnung (146, 276), though in the Burgerliches Gesetzbuch
the word ' Einrede ' is used exclusively for pleas constituting the third
line of defence, pleas constituting the second line of defence being
called ' Einwendungen ' (see 202 (2) and 334, 404, 417, 774, 784, 796).
The terminology of the B. G. B., as thus indicated, was, we are
informed, deliberately adopted by its authors.
The distinction between counteractive and destructive pleas does
not seem to have had much influence on English pleading. Stephens
in his Commentaries, V. 10, admits that all pleas are not necessarily
either traverses or pleas in avoidance ; and, as an instance of a plea
that falls under neither class, mentions pleas by way of estoppel.
One species of estoppel, estoppel by record, is the Koman exceptio rei
judicatae : so that here we find recognized a third class of plea under
which we might have expected that other averments analogous to
other Koman exceptions would be ranged. We find, however, the
pleas of the statute of limitations (prescription) and of set-off (conv
pensatio) given as instances of pleas in discharge, i. e. of what we have
called the second line of defence, or pleas in avoidance. [For the
general theory of Exceptio, see Savigny, §§ 202, 203, 226-229.
According to the prevalent opinion of more recent writers the use of
the exceptio is not confined to cases in which the defendant may be said
to have a counteracting or countervailing right, as our commentary
following Savigny supposes, but has a wider application. Cf. Keller,
Civil Process, § 34, n. 368, and the literature there cited.]
I proceed to notice some of the points incidentally mentioned by
Gaius.
576 DE ACTIONIBVS [iv. §§ 115-137.
The denial by a defendant that he had received money from
a plaintiff would not, in an actio Mutui, appear on the face of the
formula : as a simple Negation of the plaintiffs right, it would fall
under the first line of defence. It would only assume the form of
Exceptio doli, § 116 a, in an action brought on a Stipulation. Here
the promise of the defendant to repay would establish a right of the
plaintiff: but the absence of a previous payment by the plaintiff
would give the defendant a countervailing right, to be alleged in an
exceptio doli, which as in other cases of exception he would have
to prove. It was, however, a usual practice, in the time of the
classical jurists and subsequently, for a borrower of money, whether
under a contract of stipulation or an informal contract, to give the
lender a written document, called cautio, as an acknowledgment
of his having received it. A defendant, who had given such an
acknowledgment without having in fact received the money
would defend himself in all cases by the exceptio doli or exceptio
non numeratae pecuniae, as it came to be called. It was provided
by a Constitution of the Emperors Severus and Antoninus, A. D. 215,
that if an action was brought on such a cautio, and the exceptio non
numeratae pecuniae was pleaded in defence, the burden of proving
that the money, which was claimed, had been paid should be on
the plaintiff instead of being, as in other cases of exception, on the
defendant, Cod. 4, 30, 3. But, as we have seen, the rule was
established that if the person who had given the cautio allowed
a certain period to elapse from the time when it was given, the
acknowledgment should be considered presumptive evidence of the
money having been received. The period was first fixed at one
year, then extended by Diocletian to five years, and finally reduced
by Justinian to two, Cod. 4, 30, 14. Cf. Inst. 3, 21, and see 3 §§ 97-
109, comm.
§ 117. Intimidation (metus) was ground to support not only an
exception, but also an action and an in integrum restitutio. The
words of the edict : Ait praetor : Quod metus causa gestum erit
ratum non habebo, Dig. 4, 2, 1, ' Duress shall be a ground for
rescinding any disposition,' are in rem scripta that is general or
impersonal : they are not merely aimed against the intimidator, but
promise a remedy even against innocent persons who may have come
into possession of property previously acquired by reason of intimi-
dation. The actio quod metus causa was an actio arbitraria, § 47,
comm., and during one year the defendant was condemned to pay
fourfold damages if he did not make restitution according to the order
of the judex : after that it only lay for simple damages. The formula
may be thus restored : Si paret metus causa Aulum Agerium fundum
ilium Numerio Negidio mancipio dedisse neque ea res arbitrio tuo
iv. §§115-137.] DE EXCEPTIONIBVS 577
restituetur neque plus quam annus est cuin experiundi potestas fuit,
quanti ea res erit, tantae pecuniae quadruplum judex Numerium
Negidium Aulo Agerio condemnato : Si non paret absolvito. Lenel,
§ 39, 3. It was a personal action, and therefore in case of the
defendant's insolvency was not an adequate remedy, as the plaintiff
then would only share the assets with the other creditors of the
defendant. To enable the plaintiff to bring a real action it would
be necessary for him to obtain from the praetor the extraordinary
relief of in integrum restitutio, a rescission of the forced alienation.
He then might bring a vindicatio, which would separate his property
from the assets of the defendant over which other creditors had a
claim, 3 §§ 77-81, comm.
Dolus, like metus, gave rise to an exceptio, § 1 1 7, an actio arbitraria
and in integrum restitutio. The actio de dolo malo could only be
brought against the party by whose dolus the in jury had been caused
or his heirs ; its object was to condemn the defendant in damages
if he did not make restitution, and it originally was prescribed in a
year. Constantine, A.D. 319, extended the period of prescription to
two calendar years, biennium continuum, Cod. 2, 20, 8. After that
period the plaintiff had only an actio in factum for damages to the
amount that the defendant had gained by the fraud. The actio de
dolo, as also the actio quod metus causa, could only be brought if the
plaintiff could not obtain redress by any other action (si alia actio
non erit), that is to say they were subsidiary actions.
§ 1 1 9. In the exceptio doli the words : Si in ea re nihil dolo malo
Auli Agerii factum sit, allege dolus praeteritus, i. e. assert that the
right of the plaintiff was vitiated in its origin : the words : neque fiat,
allege dolus praesens, i. e. assert that the right of the plaintiff, though
originally clear of dolus, is now in collision, to the knowledge of the
plaintiff, with a right of the defendant, e. g. the right of compensatio.
Dolo facit quicumque id, quod quaqua exceptione elidi potest, petit :
nam et si inter initia nihil dolo malo facit, attamen nunc petendo
facit dolose, nisi si talis sit ignorantia in eo, ut dolo careat, Dig. 44,
4, 2, 5. The actio de dolo was famosa, i. e. it involved infamia.
The exceptio doli was in jus concepta, bringing both questions of
law and fact to an issue, but an exceptio in factum might be sub-
stituted for it, e. g. exceptio non numeratae pecuniae, and for any
other plea an exceptio doli might be used, if at the time when action
was brought the plaintiff knew of its validity. The exception of
fraud, being discreditable to the plaintiff, could not be alleged against
a parent or patron, but had to be converted into an exception of fact,
Dig. 44, 4, 4, 16. Cf. Cic. ad Attic. 6, 1, 15. So again if a neighbour out
of humanity enabled a slave to escape from the cruelty of his master,
he was liable to an action in factum concepta, not doli. Dig. 4, 3, 7, 7.
578 DE ACTIONIBVS [iv.§§ 115-137.
Bona fides implies the absence of dolus : so far then as the
exceptio merely empowered the judex to take into consideration
equitable grounds of defence, no exceptio doli was necessary in
actions bonae fidei, for here the commission of the judex expressly
authorized him in the intentio of the formula to decide upon equitable
grounds (ex bona fide) : Judicium fidei bonae est et continet in se
doli mali exceptionem, Dig. 30, 84, 5 : Cum enim doli exceptio insit
de dote actioni, ut in ceteris bonae fidei judiciis, Dig. 24, 3, 21.
This, however, does not apply to the exceptio rei in judicium
deductae or rei judicatae and others like exceptio cognitoria and litis
dividuae, which are founded rather on special considerations than
on those relating to bona fides, and had to be expressed in the
formula, if they formed the defence of the defendant, even in
actions bonae fidei. (Cf* Keller, Civil Process, § 35.)
Cicero gives the form of exceptio doli contained in the edictum
Asiaticum of Q. Mucius : Extra quam si ita negotium gestum est ut
eo stari non oporteat ex fide bona, Ad Att. 6, 1, 'unless the circum-
stances of the disposition make its enforcement inconsistent with the
principles of good faith.' This seems to be impersonally framed, but
the formula, as stated, may be incomplete. (Cf. Dig. 44, 4, 2, 1.)
The exceptio doli from the comprehensiveness of its meaning,
does not sufficiently disclose the line of defence which a defendant
intends to pursue : accordingly, in Germany, the fact which con-
stitutes the dolus is always required to be specified.
Property became litigious (res litigiosa) as soon as it was the
subject of litis contestatio. Originally it was only on the side of
the plaintiff (non-possessor) that alienation was prohibited, cf. § 1 1 7 a.
An edict of Augustus prohibited the alienation of litigated Italic
land in terms which perhaps suggest the reason why an exceptio
was necessary in order to repel the claims of the alienee. Qui
contra edictum divi Augusti rem litigiosam a non possidente com-
paravit, praeterquam quod emptio nullius momenti est, poenam
quinquaginta sestertiorum fisco repraesentare compellitur : res autem
litigiosa videtur, de qua apud suum judicem lis delata est : sed hoc
in provincialibus fundis prava usurpatione optinuit. Fragmentum
Ulpiani, de jure fisci, § 8. 'If, in contravention of the edict
of Augustus, an object of litigation is purchased of a vendor not
in possession, the sale is not only void but the purchaser forfeits
fifty sestertia to the treasury. A thing seems to be an object of
litigation, if an action concerning it has been submitted to a judex.
This law has, however, been improperly applied to lands in the
provinces.' Italic soil was aliened by mancipatio, 2 § 27 ; and
mancipation of land transferred ownership in the property without
delivery of possession. The edict only declared the contract of sale
iv. §§ 115-137.] DE EXCEPTIONIBVS 579
(emptio) void, not the mancipatio. To defeat, therefore, the vindi-
catio of the purchaser who had become owner, the possessor (de-
fendant in the original suit) required the protection of an exceptio.
Alienation by a defendant in possession appears not to have been
prohibited, because, the condemnatio in any suit being pecuniaria, it
was held that the defendant could not injure the plaintiff by aliena-
tion of the specific thing. Of. Roby, p. 406.
At a later period, when execution in a suit might consist in the
compulsory delivery of the specific thing, alienation by a defendant
was recognized as an injury to the plaintiff. Accordingly Justinian's
code, 8, 36, 2, not only avoided every alienation by a plaintiff of the
right of ownership or right of action that he claims, but also aliena-
tion by a possessing defendant of property claimed of him by vindi-
catio, Cod. 8, 36, 5, Nov. 112, 1. If the purchaser has notice of the
litigiosity, he forfeits the purchase money to the fiscus, and the
vendor forfeits an equal sum. If the purchaser was without notice,
he recovers his purchase money and one-third additional from the
vendor, who further forfeits two-thirds to the treasury. Vangerow,
§160.
Compare the prohibition of Champerty and Maintenance in
English law. Thus buying or selling a disputed title to land not in
possession of the sender is Champerty. Whether the title of the vendor
be bad or good, if the land is held adversely to him, such a sale is
void. Choses in possession (movables) and choses in action may be
sold after the institution of a suit, unless the assignment savour of
Maintenance, i. e. be made with the design of fomenting litigation.
§ 120. Justinian, Inst. 4, 13, 8, uses the term temporalis as equiva-
lent to dilatoria, but then an ambiguity arises : for temporalis
exceptio sometimes denotes the plea of prescription (longi temporis
exceptio), e.g. Cod. 12, 30, 52: and the plea of prescription is
perpetua, or peremptoria, i. e. not a temporary or dilatory one.
§ 123. The statement of Gaius, that a dilatory exception, if sus-
tained, was fatal to the claim of the plaintiff, as his right of action
was consumed, can scarcely have been true of exceptio fori, and
exceptio praejudicialis. When a court is incompetent to try a cause
or postpones the trial, the instructions to the judge : Si non paret,
absolve, are inapplicable. The cause is not heard, and the right of
action cannot have been consumed when it has never been exercised.
In the legislation of Justinian, no dilatory exception was a bar to
a subsequent institution of a suit. Savigny, § 227.
§ 124. The disability of an infamous person (infamis) to appoint
a procurator or to discharge the office of procurator was abolished by
Justinian, Inst. 4, 13, 11.
§ 126. The following instances of Replicatio may be found in the
P p 2,
580 DE ACTIONIBVS [iv. $§ 115-137.
Digest. A person who has appointed two general agents of all his
property does not give authority to one of them to sue the other,
unless he does so in express terms. The procurator who has such
special authority will meet the exceptio of the other procurator,
alleging general agency, ' si non mihi mandatum sit, ut a debitoribus
peterem,' by a replicatio alleging special instructions to sue him :
' Aut si mihi mandatum est, ut a te peterem,' Dig. 3, 3, 48.
If a woman acting as guarantor in contravention of Sc. Vellaeanum
sell and deliver her land to the creditor, she can recover it back by
a real action ; and meet the exceptio alleging sale and delivery by
a replicatio alleging the contravention of Sc. Vellaeanum : ' Aut si
ea venditio contra senatusconsultum facta sit,' Dig. 16, 1, 32, 2.
Another text observes that an equality of delict on the part of
plaintiff and defendant is more adverse to the plaintiff than to the
defendant (Cum par delictum est duorum, semper oneratur petitor
et melior habetur possessoris causa), e. g. an exceptio of the defendant
alleging fraud on the part of the plaintiff (exceptio doli) is not
allowed to be met by a replicatio of the latter alleging fraud on the
part of the defendant of the following kind : ' Aut si rei quoque in
ea re dolo actum sit,' Dig. 50, 17, 154.
The Replicatio, then, if we trust these examples, was a proposition
beginning with the words 'Aut si' (cf. § 126 a): and, if this was
universal, we must suppose that the expression of Gaius, Si non
postea convenerit ut earn pecuniam petere liceret, § 126, only gives
the substance of the replicatio, not the precise terms in which it was
introduced by the praetor into the formula.
Ulpian, Dig. 44, 1, 2, 3, and Julian, Dig. 27, 10, 7, 1, 2, differ
from Gaius in the use of the words Duplicatio and Triplicatio.
They identify Duplicatio with Eeplicatio, counting the pleas from
the exceptio ; and consequently use Triplicatio to signify an aver-
ment which Gaius would call Duplicatio. (For examples of formulae
containing Exceptio, Eeplicatio, Duplicatio, see Keller, C. P., § 37.)
§ 130. The Praescriptio in favour of the plaintiff became obsolete
as soon as the old doctrine respecting litis consumptio was abrogated
and superseded by more rational rules respecting the operation of
Ees judicata, §§ 110-113, comm. In the Digest praescriptio has
become a mere synonym of exceptio.
§ 131. In connexion with the praescriptio: Ea res agatur cujus
rei dies fuit, we may quote an anecdote which Cicero puts into the
mouth of Crassus in illustration of the gross ignorance occasionally
displayed by the Eoman advocate : Quid ? his paucis diebus nonne,
nobis in tribunal! Q. Pompeii praetoris urbani familiaris nostri seden-
tibus, homo ex numero disertorum postulabat ut illi unde peteretur
vetus atque usitata exceptio daretur, cujus PECUNIAE DIES FUISSET ?
iv. §§ 115-137.] DE PRAESCKIPTIONIBVS 581
quod petitoris causa comparatum esse non intellegebat : ut [ne ?] si
ille infitiator probasset judici ante petitam esse pecuniam quam esset
coepta deberi, petitor rursus quum peteret exceptione excluderetur,
QUOD EA RES IN JUDiciuM ANTEA VENissET, De Oratore, 1. 37. 'A few
days ago when I was sitting as assessor of the praetor urbanus, the
defendant's advocate pressed the praetor to insert in the formula
the old and common exception : IN EXCLUSIVE RESPECT OF THE PAY-
MENT ALREADY DUE, not knowing that it only protected the plain-
tiff, saving him, if his demand was proved to be premature, from
being barred in a subsequent action by the exception of PREVIOUS
LITIGATION.'
When mancipation was the usual mode of transferring property
in immovables and was complete without delivery of possession,
and when, further, the rules of litis consumptio prevailed, a plaintiff
would occasionally need the praescriptio : Ea res agatur de fundo
mancipando. § 131 a. At a later period transfer of possession (tra-
ditio) became the only means of transferring property, and the rules
of res in judicium deducta (lis contestata), as we have seen, underwent
a reform.
Praescriptio longi temporis, in the legislation of Justinian, is in
principle equivalent to Usucapio, though the term usucapio is only
used for the acquisition of movable things by possession for three
years. This arose in the following manner. A proprietor's right
to recover by vindicatio might at an early period be barred by an
averment of adverse possession, during ten years, if the parties were
domiciled in the same province, during twenty years, if they were
domiciled in different provinces (longi temporis possessio). This
exceptio of the defendant appeared in the formula in the shape and
under the name of a praescriptio (pro reo), which is so called on
account of the place it once occupied in the formula, cf. § 133. When,
by later legislation, longi temporis possessio accompanied with bona
fides became a title whereby property was acquired, it still retained
its original name of praescriptio. The term Exceptio longi temporis
was a misnomer, because the averment of title by prescription was
not an Exceptio but a Negatio of the plaintiffs ownership, i. e.
belonged to the second line of defence. Bethmann-Hollweg, § 154.
§§ 136, 137. Savigny, vol. 5, p. 617, supposes that the formula
would not contain the word incertum but the substance of the con-
tract, e. g. possessionem tradi, cf. Lenel, § 55. It is probable that
in the lacuna § 134 Gaius explained the nature of praescriptiones
pro rev.
The leaf containing from intentione formulae, § 134, to aut pro
possessore, § 144, was separated from the rest of the Veronese codex,
and seen by Scipio Maffei in 1732. It was afterwards published by
582
DE ACTIONIBVS [iv. §§ 138-170.
Haubold in 1816, the very year in
of the codex.
§ 138. Superest ut de inter-
dictis dispicianius.
Inst. 4, 15, pr.
§ 139. Certis igitur ex causis
praetor aut proconsul principa-
liter auctoritatem suam finien-
dis controuersiis mferponit.
quod turn maxime facit, cum
de possessione aut quasi pos-
sessions inter aliquos contendi-
tur. et in summa aut iubet
aliquid fieri aut fieri prohibet.
formulae autem et uerborum
conceptiones, quibus in ea re
utitur, interdiota { — } decre-
taque.
§ 140. Vocantur autem de-
creta, cum fieri aliquid iubet,
ueluti cum praecipit ut aliquid
exhibeatur aut restituatur ; in-
terdicta uero, cum prohibet
fieri, ueluti cum praecipit ne
sine uitio possidenti uis fiat,
neue in loco sacro aliquid fiat,
unde omnia interdicta aut re-
stitutoria aut exhibitoria aut
prohibitoria uocantur.
§ 141. Nee tamen cum quid
iusserit fieri aut fieri prohibue-
rit, statim peractum est nego-
tium, sed ad iudicem recupera-
toresue itur et ibi editis formu-
lis quaeritur an aliquid aduer-
sus praetoris edictum factum
sit uel an factum non sit, quod
is fieri iusserit. et modo cum
poena agitur, modo sine poena :
cum poena, ueluti cum per
sponsionem agitur, sine poena,
ueluti cum arbiter petitur. et
quidem ex prohibitoriis inter-
dictis semper per sponsionem
which Niebuhr discovered the rest
§ 138. The last subject to be
examined is interdicts.
§ 1 39. In certain cases for the
purpose of putting an end to con-
troversies, the praetor or pro-
consul directly interposes his
authority as a magistrate, which
he does then more especially,
when possession or quasi-pos-
session is in dispute between the
parties : the magistrate in short
thus commands or forbids some-
thing to be done : the formulae
and set terms adapted and made
use of for this procedure being
called interdicts and decrees.
§ 140. They are called decrees,
when he commands that some-
thing be done ; for instance,
when he orders that something
be produced, or something be
restored: and they are called
interdicts, when he prohibits
something being done ; as when
he forbids the violent disturbance
of possession acquired without
any defect, or the desecration of
consecrated ground. Interdicts,
then, are orders either of restitu-
tion, or of production, or of
abstention.
§141. But the order to do or not
to do something does not end the
proceedings, since they go to a
judex or to recuperators, and
formulae having been issued for
the purpose, an inquiry is held as
to whether anything has been by
them done contrary to the praetor's
prohibition or omitted contrary
to his injunction. And this pro-
cedure sometimes is penal, some-
times not penal ; penal when it
is by sponsio, not penal when an
arbiter is demanded (formula
arbitraria). Prohibitory inter-
dicts are always carried on by
iv. §§ 138-170.] DE INTERDICTIS
583
agi solet ; ex restitutoriis uero
uel exhibitoriis modo per spon-
sionem, modo per formulam
agitur quae arbitraria uocatur.
§ 142. Principalis igitur di-
uisio in. eo est, quod aut pro-
fa ibitoria sunt interdiota aut
restitutoria aut exhibitoria.
Inst. 4, 15, 1.
§ 143. Sequens in eo est
diuisio, quod uel adipiscendae
possessionis causa conparata
sunt uel retinendae uel recipe-
randae. Inst. 4, 15, 2.
§ 144. Adipiscendae posses-
sionis causa interdictum ac-
commodatfur bonorum posses-
sori, cuius principium est QVO-
RVM BONORYM ; eiusque uis et
potestas haec est, ut quod quis-
que ex his bonis quorum posses-
sio alicui data est, pro herede
aut pro possessore possideai, id
ei cui bonorum possessio data
est restituatur. f pro herede
autem possidere uidetur tarn is
qui heres est, quaw is qui putat
se heredem esse : pro posses-
sore is possidet qui sine causa
aliquam rem hereditariam uel
etiam totam hereditatem sciens
ad se non pertinere possidet.
ideo autem adipiscendae pos-
sessionis uocatur {interdic-
tum,}, qum ei tantum utile est,
qui nunc primum conatur adi-
pisci rei possessionem. itaque
si quis adeptus possessionem
amiserit, desinit ei id inter-
dictum utile esse.
Inst. 4, 15, 3.
§ 145. Bonorum quoque em-
ptori similiter proponitur inter-
dictum quod quidam posses-
sorium uocant.
§ 146. Item ei qui publica
bona emerit eiusdem condi-
way of sponsio ; orders of restitu-
tion or production sometimes by
sponsio, sometimes by means of
a formula arbitraria.
§ 142. The first division, then,
of interdicts is that they are
either for abstention, for restitu-
tion, or for production.
§ 143. The next is into inter-
dicts either for obtaining posses-
sion, or for retaining possession,
or for recovering possession.
§ 144. An interdict for obtain-
ing possession is issued to the
bonorum possessor, beginning :
'Whatever portion of the pro-
perty ; ' and injoining, that what-
ever portion of the property,
whereof possession has been
granted to the claimant, is in the
hands of one who holds as heir
or as mere possessor, such portion
shall be delivered to the grantee
of bonorum possessio. He holds
as heir who either is heir or
thinks himself heir ; he holds as
mere possessor who relies on no
title but holds a portion or the
whole of the inheritance, knowing
that he is not entitled. It is
called an interdict for obtaining
possession because it is only
available to a person endeavouring
to acquire possession for the first
time, and so ceases to be avail-
able to a person who has already
had and lost possession.
§ 145. Also the purchaser of
an insolvent estate (bonorum
emptor) is granted a similar inter-
dict, which some call possessory
(interdictum possessorium).
§ 146. Likewise the purchaser
of confiscated property at a public
584
DE ACTIONIBVS
[iv. §§ 138-170.
cionis interdictum proponitur
quod appellatur sectorium, quod
sectores uocantur qui publice
bona mercantur.
§ 147. Interdictum quoque
quod appellatur Saluianum &di-
piscendae possessionis (tuusa)
conparatum est, eoque utitur
dominus fundi de rebus coloni,
quas 28 pro mercedibus fundi
pignoii futuras pepigisset.
Inst. 1. c.
§ 148. Retinendae posses-
sionis causa solet interdictum
reddi, cum ab utraque parte
de proprietate alicuius rei con-
trouersia est, et ante quaeritur
uter ex litigatoribus possidere
et uter petere debeat ; cuius rei
gratia conparata sunt VTI POS-
SIDETIS et VTRVBI.
Inst. 4, 15, 4.
§ 149. Et quidem VTJ POSSI-
DETIS interdictum de fundi uel
aedium possessions redditur,
VTRVBI uero de rerum mobilium
possessions. Inst. 1. c.
§ 150. Et siquidem de fundo
uel aedibus interdicitur, eum
potiorem esse praetor iubet, qui
eo tempore quo interdictum
redditur nee ui nee clain nee
precario ab aduersario possi-
deat ; si uero de re mobili, eum
potiorem esse iubet, qui maiore
parte eius anni nee ui nee clam
nee precario ab aduersario pos-
sederit ; idque satis ipsis uerbis
interdictorum significatur.
Inst. 1. c.
§ 151. Sed in VTRVBI inter-
dicto non solum sua cuwjue
possessio prodest, sed etiam
alterius, quam iustum est ei
accedere, ueluti eius cui heres
auction has a similar interdict,
which is called sectorium, because
the purchasers of such public pro-
perty are called sectores.
§ 147. The interdict called Sal-
vianum is also an interdict for
obtaining possession, and is avail-
able to the landlord against the
tenant's property which has been
hypothecated to him by the ten-
ant as a security for rent.
§ 148. Interdicts for retaining
possession are regularly granted
when two parties are disputing
about the ownership of a thing,
and the question which has to be
determined in the first place is
which of the litigants shall be
plaintiff and which defendant in
the vindication ; it is for this
purpose that the interdicta Uti
possidetis and Utrubi have been
established.
§ 149. The former interdict is
granted in respect of the pos-
session of land and houses, the
latter in respect of the possession
of movables.
§ 150. When the interdict re-
lates to land or houses, the praetor
prefers the party who at the
issuing of the interdict is in
actual possession, such possession
not having been obtained from the
opposing party either by violence or
clandestinely, or by his permission.
When the interdict relates to a
movable, he prefers the party
who in respect of the adversary
has possessed without violence,
clandestinity, or permission, dur-
ing the greater part of that year.
The terms of the interdicts suffi-
ciently show this distinction.
§ 151. But in the interdict,
' Whichever party possessed '
(interdictum Utrubi), not only
the litigant's own possession is
taken advantage of for calculating
iv. §§ 138-170.]
DE INTERDICTIS
585
extiterit, eiusque a quo emerit
uel ex donatione aut dotis
nomine acceperit. itaque si
nostrae possession! iuncta alte-
rius iusta possessio exuperat
aduersarii possessionem, nos eo
interdicto uincimus. nullam
autem propriam possessionem
habenti accessio temporis nee
datur nee dari potest; nam ei
quod nullum est nihil accedere
potest. sed et si uitiosam ha-
beat possessionem, id est aut ui
aut clam aut precario ab ad-
uersario adquisitam, non datur
accessio; nam ei (possessio)
sua nihil prodest.
§ 152. Annus autem retror-
sus numeratur. itaque si tu
uerbi gratia vin mensibus pos-
sederis prioribus, et ego vii
posterioiibus, ego potior ero,
quod triuin priorum mensium
possessio nihil tibi in hoc inter-
dicto prodest, quod alterius anni
possessio est.
§ 153. Possidere autem uide-
mur non solum si ipsi possidea-
mus,sed etiam si nostro nomine
aliquis in possessions sit, licet
is nostro iuri subiectus non sit,
qualis est colonus et inquilinus ;
per eos quoque, apud quos de-
posuerimus, aut quibus com-
modauerimus, aut quibus gra-
tuitam habitationem praestite-
rimus, ipsi possidere uidemur.
the time, but also any possession
of another person which may
justly be treated as an accessory
to it, such as that of a person
deceased to whom he succeeds as
heir, that of a person from whom
he has purchased a thing, or has
received it by way of gift or on
account of dower ; thus if my
possession when added to the just
possession of another person ex-
ceeds in time that of my oppo-
nent, I succeed against him in
that interdict ; but he who has
no possession of his own neither
receives nor can receive any
accession of another's possession ;
for what is non-existent is incap-
able of having an accession made
to it. But should the possession
of a person be a defective one
(vitiosa), that is, have been ob-
tained from his opponent either
by violence (vi) or clandestinely
(clam) or by his leave and licence
(precario), he cannot receive any
accession to it, for his own pos-
session is of no avail.
§ 152. The year computed is
the year immediately preceding ;
so that if, for instance, you pos-
sessed during eight months pre-
vious to me, and I during the
seven following months, I am
preferred, because your possession
for the first three months is not
counted in your favour in this
interdict, it having been in a
different year.
§ 153. But a person is deemed
to possess, not only when he
possesses himself, but also when
any one holds the thing in pos-
session in his name, though the
person so holding it is not sub-
ject to my power ; such, for
instance, is the holding of pro-
perty by a hirer of land (colonus)
or of a house (inquilinus). So also
a person is deemed to possess by
586
DE ACTIONIBVS [iv.§§ 138-170.
et hoc est quod uulgo dicitur
retineri possessionem posse per
quemlibet, qui nostro nomine
sit in possessione. quin etiam
plerique putant animo quoque
retineri possessionem, id est
ut quamuis neque ipsi simus
in possessioney neque nostro
nomine alius, tamen si non re-
Imquendae possession?^ animo,
sed postea reuersuri inde dig-
cesserimus, retinere posses-
sionem uideamur. atfo'pisci uero
possessionem perquos possimus,
secundo commentario rettuli-
mus. nee ulla dubitatio est
quin animo possessionem &di-
pisci non possimus.
List. 4, 15, 5.
§ 154. Reciperandae posses-
sionis causa solet interdictum
dari, si quis ex possessione ui
deiectus sit ; nam ei proponitur
interdictum, cuius principium
est VNDE TV ILLVM VI DEIECISTI,
per quod is qui deieci£ cogitur
ei restituere rei possessionem,
si modo is qui deiectus est nee
ui nee clam nee precario (a&
eoy possederit ; — eum, qui a
me ui aut clam aut precario
possidet, inpune deicio.
Inst.4, 15,6.
§ 155. Interdum tamen etsi
eum ui deiecerim, qui a me ui
aut clam aut precario posse-
derit, cogor ei restituere posses-
sionem, ueluti si armis eum ui
deiecerim ; nam propter atroci-
tatem delicti in tantum patior
actionem,ut omni modo debeam
ei restituere possessionem. ar-
morum autem appellatione non
means of those with whom he
has deposited a thing, or to whom
he has lent gratuitous use or
habitation of it, as is expressed
by the saying that possession is
retained by any one who holds a
thing in possession in our name.
Moreover, it is generally allowed
that mere intention suffices for
the retention of possession, that
is, that although we are neither
in possession ourselves, nor any
one else in our name, yet if we
have gone away without meaning
to abandon possession but with
the intention of returning, it
would seem we still retain pos-
session. The persons by means
of whom we may acquire pos-
session were mentioned in the
second book ; there is not any
doubt of the impossibility of
acquiring possession by intention
alone.
§ 154. An interdict for re-
covering possession is granted to
a person dispossessed of an im-
movable by violence, beginning :
' In the place whence thou
hast violently ejected,' which
compels the ejector to restore
possession, provided that the
person ejected did not acquire
possession from the other party
either by violence or clandestinely
or by his leave and licence.
Whereas, if his own possession
was thus acquired from the other
he may be ejected by him with
impunity.
§ 155. Sometimes, however, the
person violently ejected, though
his own possession was obtained
from the opposite party either by
violence or clandestinely or by his
leave and licence, can claim to be
reinstated, that is, when he has
been ejected by force of arms : for
then on account of theheinousness
of the offence lam punished to the
iv. §§ 138-170.]
DE INTERDICTIS
587
solum scuta et gladios et galeas
significari intellegemus, sed et
fustes et lapides. Inst. 1. c.
§ 156. Tertia diuisio inter-
dictorum in hoc est, quod aut
simplicia sunt aut duplicia.
Inst. 4, 15, 7.
§ 157. Simplicia sunt ueluti
in quibus alter actor, alter reus
est, qualia sunt omnia restitu-
toria aut exhibitoria ; namque
actor est, qui desiderat aut ex-
hiberi aut restitui, reus is est
a quo desideratur ut exhibeat
aut restituat. Inst. 1. c.
§ 158. Prohibitoriorum autem
interdictorum alia duplicia, alia
simplicia sunt. Inst. 1. c.
§ 159. Simplicia sunt ueluti
quibus prohibet praetor in loco
sacro aut in flumine publico
ripaue eius aliquid facere reum ;
nam actor est qui deaiderat ne
quid fiat, reus is qui aliquid
facere conatur. Inst. 1. c.
§ 160. Duplicia sunt ueluti
VTI POSSIDETIS interdictum et
VTRVBI. ideo autem duplicia
uocantur, quod pax utriusque
litigatoris in his condicio est,
nee quisquam praecipue reus
uel actor intellegitur, sed unus-
quisque tarn rei quam actoris
partes sustinet ; quippe praetor
pari sermone cum utroque lo-
quitur, nc&m summa conceptio
eorum interdictorum haec est
VTI NOTC POSSIDETIS, QVOMINVS
ITA POSSIDEATIS. VIM FIERI
extent of being compelled by
action [i. e. by the interdict de vi
armata] to reinstate him what-
ever the previous circumstances
may have been. By the term
arms we are to understand not
only shields, swords, and helmets,
but also sticks and stones.
§ 156. A third division of in-
terdicts is into Simple and
Double.
§157. Those are simple where-
in one party is plaintiff and the
other defendant, as always is the
case in all the restitutory or ex-
hibitory interdicts ; for he who
demands the exhibition or resti-
tution of a thing is plaintiff, and
he from whom it is demanded is
defendant.
§ 158. Of prohibitory inter-
dicts, some are simple, others
double.
§ 159. The simple are exem-
plified by those wherein the
pi'aetor commands the defendant
to abstain from desecrating con-
secrated ground, or from doing
anything which is illegal on a
public river or on its banks ; for he
who demands that the illicit act
shall not be done is plaintiff, he
who is attempting to commit the
illicit act is defendant.
§ 160. Of double interdicts we
have examples in Uti possidetis
and Utrubi. They are deno-
minated double because the foot-
ing of both parties is equal,
neither being exclusively plaintiff
or defendant, but both playing
both parts, and both being ad-
dressed by the praetor in identical
terms. For in brief these inter-
dicts are thus drawn up respec-
tively, 'I forbid violence to be
used to prevent your possessing
the property as you now in fact
possess it' ; and the other interdict
588
DE ACTIONIBVS [iv. §§ 138-170.
VETO ; item alterius VTRVBI Hie
HOMO ' DE QVO AGITVR [APVD
QVEM] MAIORE PARTE HVIVS
ANNI FVIT, QVOMINVS IS EVM DV-
CAT, VIM FIERI VETO. Inst. 1. C.
§ 161. Expositis generibus
interdictorum sequitur ut de
ordine et de exitu eorum dispi-
ciamus. et incipiamus a sim-
plicibus. Inst. 4, 15, 8.
§ 162. <tfi> igitur restitu-
torium uel exhibitorium inter-
dictuin redditur, ueluti ut re-
stituatur ei possessio qui ui
delectus est, aut exhibeatur
libertus cui patronus operas
indicere uellet, modo sine peri-
culo res ad exitum perducitur,
modo curn periculo.
§ 163. Namque si arbitrum
postulauerit is cum quo agitur,
accipit formulam quae appella-
tur arbitraria, et iudicis arbitrio
si quid restitui uel exhiberi
debeat, id sine periculo exhibet
aut restituit, et ita absoluitur ;
quodsi nee restituat neque ex-
hibeat, quanti ea res est con-
demnatu?1. sed et actor sine
poena experitur cum eo, quern
neque exhibere neque restituere
quicquam oportei, praeterquam
si calumniae iudicium ei oppo-
situm fuerit decimae partis,
quamquam Proculo placm£
denegandum. calumniae iudi-
cium e^ qui arbitrum postula-
uerit, quasi hoc ipso confessus
uideatur restituere se uel ex-
hibere debere. sed alio iure
utimur et recte ; potius enim
ut modestiore uia litiget, arbi-
trum quisque petit, quam quia
confitetur.
runs thus, 'I forbid violence to
be used to prevent the party who
has possessed the slave during
the greater part of the year from
taking him away. '
§ 161. After classifying inter-
dicts we have next to explain
their process and result ; and we
begin with the simple.
§ 162. When an order of resti-
tution or production is issued,
for instance, of restitution of
possession to a person who has
been forcibly ejected from it, or
of production of a freedman whose
services his patron intends to call
into request, the proceedings are
sometimes penal, sometimes not
penal.
§ 163. For when arbitration is
demanded by the defendant, he
receives what is called a formula
arbitraria, and if by the arbitra-
tion of the judex he is directed
to restore or produce anything,
he either restores or produces it
without further penalty and so is
absolved, or if he does not restore
or produce it he is condemned,
but only to make good whatever
loss is caused to the plaintiff by
his not obeying the order of the
judex. Neither does the plaintiff
incur any penalty for suing a
defendant who is not obliged to
produce or restore, unless he is
challenged by the defendant to
an action for vexatious litigation
(calumniae judicium) to recover
from him a tenth of the object of
the suit by way of penalty. For
though Proculus held that the
demand of arbitration precludes
the defendant from suing for
vexatious litigation, on theground
that it is an admission by him of
an obligation to restore or to
produce the thing, we adopt the
contrary view and justly so ; for
iv. §§ 138-170.]
§ 164. Obseruare (autem}
debet is qui uult arbitrura
petere, ut statim petat ante-
quara ex iure exeat, id est ante-
quam a praetore rfiscedat ; sero
enim petentibus non indulgetur.
§ 165. Itaque si arbitrum non
petierit, sed tacitus de iure
exierit, cum periculo res ad
exitum perducititr. nam actor
prouocat aduersarium spon-
sions, {quod} contra edictum
praetoris non exhibuerit aut
non restituerit ; ille autem ad-
uersus sponsionem aduersarii
restipulatur. deinde actor qui-
dem sponsionis formulam edit
aduersario, ille huic inuicem
restipulationis. sed actor spon-
sionis formulae Bubicit et aliud
iudicium de re restituenda uel
exhibenda, ut si sponsione ui-
cerit, nisi ei res exhibeatur aut
restituatur, 1
(24 uersus in G legi nequeunt)
j — aliud facer e quam
qu — dicat qu 1
(7 uersus in C legi nequeunt)
1 appellata — |
(5 uersus in C legi nequeunt)
1 — intelle- I I
' 1— qua 1 _
(3 uersus in C legi nequeunt)
• |modis | — paratus
fuit 1
(3 uersus in C legi nequeunt)
§ 166. j — fructus lici-
tando, is tantisper in posses-
sione co^lstituitur, si modo ad-
uersario suo fructuaria stipu-
latione ca\uerit, euius uis et
potestas haec est, ut si contra
589
the demand of an arbiter shows
that the defendant wishes to
litigate in a more moderate way,
but not that he confesses the
opponent's claim.
§ 164. The defendant must be
careful, if he wishes to demand
an arbiter, to make the demand
at once before he leaves the court
or tribunal of the praetor ; for
a subsequent demand will not be
granted.
§ 165. Thus if he leaves the
court without requesting an arbi-
ter, the proceeding is brought to
an issue attended with risk to
the parties: for the plaintiff chal-
lenges the defendant to wager a
sum to be forfeited by the de-
fendant if he has contravened the
edict of the praetor by failing to
produce or restore ; and the de-
fendant challenges the plaintiff
to a counter-wager of a similar
sum to be forfeited by the plain-
tiff upon the opposite condition.
The plaintiff then delivers the
formula of the wager to the de-
fendant, and the defendant in
turn delivers the formula of the
counter-wager. But the plaintiff
adds to the formula of the wager
another action for the production
or restoration of the thing in dis-
pute, in order that if he obtains
judgment in the action on the
wager and the thing is not re-
stored or produced, the defendant
may be condemned in damages to
the amount of its value.
§ 166. WJien a double interdict
has been issued, the interim pos-
session or mesne profits are sold
by auction, and the higher bidder
of the litigants is placed in pos-
session pending the controversy,
590
DE ACTIONIBVS [iv.§§ 138-170.
eum de poss\essione pronuniia-
tum fuerit, earn summam ad-
uerjsario soluat. haec autem
licendi contentio fructus licita-
tio uocatur, scilicet quia
. postea alter | alterum
sponsione prouocat, quod ad-
uersus edictum praetoris possi-
denti eibi uis facta sii, et inui-
cem ambo restipulan tur aduer-
sus sponsionem ; uel una
inter eos sponsio itewque resti-
pulatio una |ad earn fit.
1 Iresti — .
§ 166 a. ludex apud quern
de ea | re agitur illud scilicet
requiiit, (quod) praetor inter-
dicto conplexus est, id est uter
eorum eum fundum easue aedes
per id tempus quo interdictum
redditur, nee ui nee clam nee
precario possederit. cum iudex
id explorauerit et forte secun-
dum me iudicatum sit, aduer-
sarium mihi et sponsionis et
restipulationis summas quas
cum eo feci condemnat, et
conuenienter me sponsionis
et restipulationis quae inecum
factae sunt absoluit. et hoc
amplius si apud aduersarium
meum possessio est, quia is
fructus licitatione uicit, nisi re-
stituat mihi possessionem, Cas-
celliano siue secutorio iudicio
condemnatur.
provided that he gives his oppo-
nent security by the fructuary
stipulation, the force and effect
of which is that if judgment on
the main question of possession
is pronounced against him, he
has to pay to the other party the
sum mentioned in the stipula-
tion. This bidding of the parties
against one another is called u
bidding for the fruits, because the
parties contend with one another
in this way as to the power of
taking the fruits of the thing
during the preliminary interdict
procedure. After this each party
challenges the opponent to wager
a sum to be forfeited by the
promisor if he has contravened
the edict by violently disturbing
the possession of the promisee,
and each party, after binding
himself as promisor in a wager,
becomes the promisee in a similar
counter-wager.
§ 166 a. The judex who tries
the action has to inquire into the
question proposed by the praetor
in the interdict, namely, which
party was in possession of the
house or land in question at the
time when the edict was issued,
not having acquired it from the
other party either by violence or
clandestinely or by his leave and
licence. When the judex hasthus
inquired and has, it may be, de-
cided the case in my favour, he
condemns my adversary in the
penal sums of the actions on the
wager and counter- wager in which
I was promisee, and absolves me
in the actions upon the wager and
counter-wager in which I was
promisor ; and, if my opponent is
in possession as higher bidder
in the auction, unless he restores
possession, he is condemned in
the action called Cascellianum or
Secutorium.
iv. §§138-170.]
DE INTERDICTIS
591
§ 167. Ergo is qui fructus
licitatione uicit, si non probat
ad se pertinere possessionem,
sponsionis et restipulationis et
fructus licitationis summam
poenae nomine soluere et prae-
terea possessionem restituere
iubetur ; et hoc amplius fructus
quos interea percepit reddit.
summa enim fructus licitationis
non pretium est fructuum, sed
poenae nomine soluitur, quod
quis alie?iam possessionem per
hoc tempus retinere et facul-
tatem fruendi nancisci conatus
est.
§ 168. Ille autem qui fructus
licitatione uictus est, si non
probauerit ad se pertinere pos-
sessionem, tantum sponsionis
et restipulationis summam poe-
nae nomine debet.
§ 169. Admonendi tarn en
sumus liberum esse ei qui
fructus licitatione uictus erit,
omissa fructuaria stipulatione,
sicut Cascelliano siue secutorio
iudicio de possessione recipe-
randa experitur. ita similiter
de fructus licitatione agere. in
quam rem proprium iudicium
conparatum est quod appella-
tur fructuarium, quo nomine
actor iudicatum solui satis ac-
eipit. dicitur autem et hoc
iudicium secutorium, quod se-
quitur sponsionis uictoriani ;
sed non aeque Cascellianum
uocatur.
§ 170. Sed quia nonnulli in-
terdicto reddito cetera ex inter-
dicto facere nolebant, atque ob
id non poterat res expediri,
praetor in earn rem prospexit
et conparauit interdicta quae
§ 167. So that if the higher
bidder in the auction fails to
prove that he is entitled to pos-
session, he is ordered to pay the
sums of the wager and counter-
wager in which he was promisor,
and the price he offered for the
mesne profits at the sale by
auction, by way of penalty ; and
further, to restore possession of
the thing in question, and restore
any profits which he has made
from the thing ; for the sum of
money fixed by the auction is not
the price of the mesne profits, but
a penalty for attempting to retain
the possession that belonged to
another and for thus obtaining
the power of getting the fructus
of the thing.
§ 1 68. If the unsuccessful bidder
in the auction fails to prove that
he had possession, he is only con-
demned to pay the sum of the
wager and counter-wager by way
of penalty.
§ 169. We shall notice, how-
ever, that it is open to the
unsuccessful bidder instead of
proceeding on the fructuary stipu-
lation, to bring an action upon the
sale by auction which is called
fructuarium, just as he brings
the Cascellianum or Secutorium
action for recovering possession ;
for this purpose a special action
has been established which is
called fructuary (judicium fructu-
arium) : this action, as following
the result of the action on the
wager, is also called consequen-
tial (Secutorium) ; but is not also
called Cascellianum.
§ 170. As sometimes, after the
issue of an interdict, one of the
parties declined to take one of
the subsequent steps, and the
proceedings came to a stand-still,
the praetor has provided for this
592
DE ACTIONIBVS
[iv. §§ 138-170.
secundaria appellamus,quod se-
cundo loco redduntur. quorum
uis et potesta,s haec est, ut qui
cetera ex interdicto non faciat,
ueluti qui uim non faciat aut
fructus non liceatur aut qui
fructus licitationis satis non
det aut si sponsiones non faciat
sponsionumue iudicia non ac-
cipiat, siue possidea£, | restituat
aduersario possessionem, siue
non posside|at, uim illi possi-
denti ne faciat. itaque etsi
alias potuerii | interdicto VTI
POSSIDETIS uincere, si cetera ex
interdicto | per interdictuin
secundarium — | —
(2 uersus in C legi nequeunt)
I secundarium — i
opimonem — j —
Cassius secuti
quamuis hanc
Sa&inus et
fuerint
(9 uersus in C legi nequeunt)
contingency, and invented the so-
called secondary interdicts, which
in such a case are issued : whose
effect is, that if a party decline
to take any necessary step in the
interdict procedure, such as to
violently eject the other party
(vis ex conventu), or to bid in the
auction for the mesne profits, or
to give security for the mesne
profits, or to enter into the wagers,
or to undertake the trial on the
wagers, he shall, if in possession,
be obliged to make over the pos-
session to the other party, if out
of possession he must not vio-
lently eject the other party, and
so, although he might have been
successful in maintaining the in-
terdictum Uti possidetis if he had
complied with the requisites of
procedure, possession will be
given by the secondary interdict
to the other party, if he has not
done so.
(20 uersus in C legi nequeunt)
Interdicts are characterized by Gaius, § 135, as proceedings wherein
the praetor principaliter auctoritatem suam interponit. Principaliter
may simply refer, as was assumed in the first edition, to the chrono-
logical order of steps in legal proceedings ; and then interdict pro-
cedure will be characterized by the fact that it opens with a command
of the praetor (interdictum) whereas ordinary procedure opened with
an act of the plaintiff (in jus vocatio), and the praetor's authority was
not very signally manifested, at least in statute-process, till the stage
of execution (addictio, missio in possessionem). But Bethmann-
Hollweg, § 98, seems correct in giving a less insignificant meaning to
the term which expresses the essential contrast of Interdict and
Action, and interpreting the word principaliter as expressive of the
pre-eminence, supremacy, or absolute power, of the praetor in the
sphere where interdicts were employed. The contrast then will be
between the jurisdictio of the praetor and his imperium. In his
jurisdictio his functions are merely ministerial or ancillary to those of
the legislator : in his imperium, as conservator of order, custodian of
the peace (to use modern phrases), and represser of violence, he is
invested with a portion of the sovereign power. This antithesis of
iv. §§ 138-170.] DE INTERDICTIS 593
the Praetor merely administering the ordinary law, and his exercising
a quasi-legislative power in extending it meets us in several funda-
mental classifications of Roman jurisprudence : it has already been
indicated in connexion with the contrasted terms, judicia legitima
and judicia imperio continentia, §§ 103-109, comm., and the present
is a fitting place for again noticing some of its principal aspects.
(1) Statute-process and the Formulary system are contrasted by the
respective predominance in each of the legislator and administrator.
In Legis actio the Legislator and the Litigants seem alone to occupy
the scene. The Praetor is only present as master of the ceremonies,
and even as such can only utter sentences which the Legislator has
previously dictated. In the Formulary system the Praetor appears
with much larger attributes ; he seems to have stepped in front of
the Legislator and has taken much of the initiative from the Suitors.
Thus, marking the respective prominence of the STATUTE and the
ADMINISTRATOR, we might denominate the older and younger systems
as Legis actio and Praetoris interpositio : and it is this accentuation
of the statute-book or lawgiver as opposed to the tribunals or
executive that the translation has attempted to express in offering
the invented term Statute-process as a version of Legis actio.
(2) Both Statute-process and the Formula, as representing at
different periods the Ordo judiciorum or ordinary course of pro-
cedure, by which a magistrate appointed a judex to try a case,
exemplify the predominance of the lawgiver as contrasted with that
of the magistrate, when opposed to extraordinary procedure or
Cognitio extraordinaria praetoris. The latter, in which no judex was
appointed, the proceedings throughout being under the direct
cognizance of the magistrate, was the appropriate procedure in
plaints between children and their parents or between patrons and
freedmen in cases of excessive cruelty of masters to slaves, or in cases
of injury by law occasioned by some exceptional circumstance — fraud,
violence, absence, ignorance, minority (for an account of the praetor's
extraordinary remedy on this account by in integrum restitutio see
1 §§ 197-200, comm.) — so exceptional that it had been overlooked or
disregarded in the rules of jus strictum respecting the validity of
legal dispositions. Interdicts seem also to have originally belonged
to this extraordinary jurisdiction of the praetor, who intervened in
this way in the interest of public order. In most of such cases, but
not in all (e. g. fideicommissa, though belonging to cognitio extra-
ordinaria, were instituted by Augustus, Inst. 2, 23, 1), the praetor by
his inquisition and decree (§§ 103-109, comm.) superseded not only
the judex but also the lawgiver, who had uttered no commands
respecting the various circumstances above enumerated.
(3) The same antithesis meets us as a principle of division even
WHITTUCK Q Q
594 DE ACTIONIBVS [iv. §§ 138-170.
within the limits of Ordo judiciorum. Here we find on the one hand
the class of actiones legitimae, actions of civil law, including under
one of the wider acceptations of civil law actiones bonae fidei (as to
the meaning of actio legitima, cf. Roby, 1, p. 95, n. 1) ; and on the
other the class of actiones praetoriae, that is, actiones ficticiae or actions
with a variation of persons in the intentio and condemnatio or actions
with a formula in factum concepta. In the latter class the praetor,
except so far as he abstained with a demure deference from inserting
in the formula the formal term for a legal obligation Oportere, cer-
tainly exercised the attributes of a legislator. A similar, though not
identical division, as already has been mentioned, §§ 103-109, comm.,
was that into judicia legitima and judicia imperio continentia ; a
division that, speaking roughly, corresponded to the functions of the
praetor in imperial Rome and the functions of the magistrate in the
subject provinces. This last division, though important in its time,
was more purely historic and accidental than the preceding : it has
left a less permanent impress on Roman law, and its traces are nearly
effaced from the compilation of Justinian.
(4) Interdict procedure, as opposed to the regular mode of litigation,
is defined by Gaius by the characteristic feature that the magistrate
principaliter auctoritatem suam interponit. This feature, as we have
now seen, was not peculiar to Interdicts : but if we suppose that
Interdicts were coeval with Statute-process and originally formed a
matter of Cognitio extraordinaria ; and that, further, the other sub-
jects of cognitio extraordinaria were then imperfectly developed ; at
such a period Interdicts would form the most signal manifestation of
magisterial auctoritas : and it is perhaps to a jurist of this period
that the definition we have quoted is due. So large a power of the
magistrate must however have seemed, even at Rome, inconsistent
with republican liberty : moreover he would from an early time have
found it inconvenient to inquire himself whether his command had
been obeyed. Hence a judex was appointed to decide this question,
and so the interdict became merely a conditional order, directed to
the parties, under which the judex was bound to hold a trial, if
necessary, in the ordinary form, that is by actio ex sponsione or by
actio arbitraria (§ 141), and to condemn or absolve according to his
finding (cf. Sohm, p. 307) ; and in Interdict procedure, as we know it,
obedience to the praetor's decree is not enforced by the praetor
himself but by a judex, and by legal proceedings in the ordinary
form ; either, that is, by an actio ex sponsione or by an actio
arbitraria (§ 141). Accordingly in the last period we find Interdict
procedure opposed to Cognitio extraordinaria and ranked under the
contra-distinguished class of Jus ordinarium or Ordo judiciorum.
Thus the Interdict became rather a matter of jurisdictio than of im-
iv. §§ 138-170.] DE INTERDICTIS 595
perium. However, it still remained true that in issuing an Interdict
the praetor had spoken with the voice of a sovereign. This precept
is not an application of some general command of the legislator, but
is itself a law, and will serve as the governing principle of future
adjudication. If we describe Law as a universal interdict addressed
by the legislator to the community, Interdict may be described as
a particular Law addressed by the magistrate to individuals. This
will appear more plainly when we come to the details of Interdict
procedure.
Interdicts relate to subjects in almost all departments of the code.
A. In jus publicum and jus sacrum we find the interdicts relating
to sacred places and public places — public roads or public rivers.
These places are protected by interdicta popularia, interdicts in
which any individual may vindicate as prosecutor the interests of the
public, Dig. 43, 8, 2, 34.
B. In the law of status and the law of domestic relations there are
the interdictum de homine libero exhibendo, Dig. 43, 29, a kind of
Writ of Habeas Corpus : interdicta de liberis exhibendis and de liberis
ducendis, protecting the patria potestas, Dig. 43, 30 : and de liberto
exhibendo, assisting the patron.
C. In the code of Property (res familiaris) and (i) in the depart-
ment of res singulae we have the interdicts Utrubi, Uti possidetis.
and Unde vi, relating to the possession of movables and immovables :
and others, closely allied, similarly related to the quasi-possession of
servitudes. In controversies between owners of neighbouring land
and others we have interdictum Demolitorium based on Operis novi
nunciatio (an admonition of the defendant which might be served on
him by any citizen to desist from some building innovation), an inter-
dict requiring the demolition of the building erected in spite of such
prohibition on the part of the plaintiff (nuncians), and before such
prohibition was set aside by judicial authority, Dig. 39, 1, 20, pr.;
cf. Windscheid, Pand., § 46G, n. 12 : and the interdict Quod vi aut
clam, similarly requiring the restitution or undoing of some in-
novation in land (polluting streams, cutting trees, ploughing up
pasture, &c.) that has been executed either furtively or in face of the
prohibition of some party who is interested and who has jus pro-
hibendi, Dig. 43, 24 : and other interdicts de arboribus caedendis (as
to the fifteen feet space required cf. Windscheid, § 169, n. 12) and
de glande legenda, Dig. 43, 27 : and 28, enforcing provisions derived
from the Twelve Tables.
I said that interdicts were to be found in almost all departments
of the code. It is observable that no interdicts are employed in the
law of Obligation (jus in personam) except in so far as they
protect obligations secured by way of pledge or hypothec. Thus
Qq 2
596 DE ACTIONIBVS [iv. §§ 138-170.
interdictum Salvianum (§ 147; Inst. 4, 15, 3 ; Dig. 43, 33 ; Cod. 8, 9 ;
cf. Windscheid, § 236, n. 5) protects the landlord in the recovery of
his rent by preventing the tenant from taking away his goods from
the premises demised.
(2) In the law of inheritance we have the interdicts Quorum
bonorum, § 144, Dig. 43, 2, and Quod legatorum, Dig. 43, 3, in aid of
the praetorian successor and heir.
D. In the law of Procedure we have the interdicts Quern fundum,
Quam hereditatem, Quern usumfructum, § 89, and the interdicta
Secundaria, § 170, compelling a defendant in a restitutory or ex-
hibitory interdict to defend himself in the mode prescribed by the
law under pain of forfeiting possession. Here too we may place the
interdicts Utrubi and Uti possidetis, so far as they are not themselves
final suits but only means of determining provisional or interimistic
possession during the pendency of the definitive vindicatio : and here
too, if we look on Quorum bonorum as standing to hereditatis petitio
in the same relation in which Uti possidetis stands to vindicatio, i. e.
as merely preparatory to the final suit, we may place the interdict
Quorum bonorum. At a later stage of proceedings the interdict Ne
vis fiat ei, qui in possessionem missus erit, Dig. 43, 4, protects the
creditor who has obtained execution. The interdictum fraudatorium
protects the creditor against fraudulent alienation by an insolvent
debtor, Dig. 42, 8 : the interdictum possessorium and interdictum
sectorium, §§ 145, 146, protect the purchaser of the estate of the
insolvent or the condemned criminal.
As an alternative to some of these interdicts, the plaintiff had his
option of an actio in factum : e. g. an alternative to interdictum
Salvianum was actio Serviana, Inst. 4, 6, 7 ; and an alternative to
interdictum fraudatorium was actio Pauliana, Dig. 22, 1, 38, 4. Or
possibly in these cases also the Interdict was the provisional, the
Action the definitive proceeding.
§ 1 40. Restituere in respect of the acts which it denotes is a word
of many meanings, and comprehends several acts which in physical
character have little in common but the name. Sometimes it means
the restoration of an unlawful structure to its original condition : e. g.
Quod in flumine publico ripave ejus fiat, sive quid in id flumen
ripamve ejus immissum habeas, quo static iterve navigio deterior sit,
fiat, restituas, Dig. 43, 12, 1, 19. 'What you have built in a public
river or on its bank, or what you have discharged into the river or on
to its bank, interfering with the anchorage or passage of vessels, I
command you to re-establish.' Sometimes it means the restoration of
possession, as in the interdict Unde vi, § 154 ; sometimes the delivery
of possession, where no possession has preceded, as in the interdict
Quorum bonorum, § 144. But in spite of the variety of physical acts
iv. §§ 138-170.] DE INTERDICTIS 597
which it denotes, the word Eestituere is univocal if we look at its legal
connotation, which is always the undoing of some wrong, the rein-
statement of a person in the possession and enjoyment of a right.
Exhibere is the production of a thing or person, and was usually
the preliminary of a vindication. Quern liberum hominem dolo malo
retines, exhibeas, Dig. 43, 29, 1. 'The freeman whom you unlawfully
detain I command you to produce.' Qui quaeve in potestate Lucii
Titii est, si is eave apud te est, dolove malo tuo factum est quominus
apud te esset, ita eum eamve exhibeas, Dig. 43, 30, 1. 'The son or
daughter of Lucius Titius, who is subject to his power, and whom
you detain or have by your act fraudulently ceased to detain, I com-
mand you to produce.'
§ 144. The interdict Quorum bonorum, according to Savigny, was
the remedy whereby an heir, whether civil or praetorian, and, if prae-
torian, whether contra tabulas or secundum tabulas or ab intestato,
having already, in response to his demand (agnitio) of the succession,
obtained from the praetor the formal grant (datio) of bonorum
possessio, maintained his title thereto before the tribunals if he met
with opposition ; just as hereditatis petitio was the remedy whereby
the civil successor could have maintained a corresponding claim to
the hereditas. But according to what is now the prevalent opinion
this interdict had a more limited application than hereditatis petitio,
being confined in its object to obtaining possession of corporeal
objects belonging to the inheritance. Cf. 3 §§ 18-38, comm.
The terms of the interdict ran as follows : Quorum bonorum ex
edicto meo illi possessio data est, quod de his bonis pro herede aut
pro possessore possides possideresve, si nihil usucaptum esset, quod-
que dolo malo fecisti uti desineres possidere, id illi restituas, Dig.
43, 2, 1. 'Whatever portion of the goods, granted in pursuance of
my edict to be possessed by such and such a one, thou possessest as
heir or as possessor, or wouldest so possess but for usucapion, or hast
by your act fraudulently ceased to possess, such portion do thou
deliver up to such a one.'
Quorum bonorum was the proper remedy against two classes of
adversary : (i) any one who claimed as heir (pro herede), either under
the praetorian edict or as fideicommissarius, Dig. 5, 3, 20, 13, or at
civil law ; and (2) praedo, or any one who seized and held without
title, or merely by title of occupancy (pro possessore), in virtue of the
anomalous law which permitted strangers to seize vacant heredita-
ments, and convert possession into ownership by a short period of
usucapion, 2 § 52. If the adversary claimed on any other title, e. g.
pro empto or pro donato, the proper remedy of bonorum possessor
or heres was not by Quorum bonorum nor by Hereditatis petitio, but
by an ordinary Keal action (Kei vindicatio). The words ' possideresve
598 DE ACTIONIBVS [iv. §§ 138-170.
si nihil usucaptum foret ' are a trace of the Sc. mentioned in 2 § 5 7
(cf. comm. to this passage), which relieved the grantee of possession
against usucapion, i. e. which rescinded the usucapion, and allowed
Quorum bonorum to be brought even after usucapion had been com-
pleted and the bona fide putative successor or the mala fide unentitled
occupant no longer possessed pro herede or pro possessore, but pro
suo. (According to Puchta, usucapion was always unavailing against
Quorum bonorum, and the effect of the Sc. was only to assist the heir
at civil law, by inserting in the formula of Hereditatis petitio a clause
that had always as a matter of course been inserted in the interdict
Quorum bonorum.)
According, then, to Savigny, Quorum bonorum was a definitive suit
in matters of succession when the plaintiff, instead of claiming here-
ditas in reliance on jus civile, claimed bonorum possessio in reliance
on jus praetorium. But the prevalent opinion is that of Vangerow,
that Quorum bonorum was merely a summary and provisional
procedure for obtaining possession of corporeal objects belonging to
the inheritance pending the definitive suit for the succession. The
ultimate title to the estate would be determined by an hereditatis
petitio if the suit was brought by the heir, or by an hereditatis
petitio possessoria, if the suit was brought by the praetorian
successor, Dig. 5, 5, 1. In support of this view, it may be observed
that on Savigny's hypothesis no satisfactory account can be given of
the nature of hereditatis petitio possessoria.
§ 148. In the real actions of statute-process or the eldest system
the award of provisional possession during the pendency of a suit
was called Vindicias dicere, cf. § 16 and Gellius 20, 10. In the later
methods of real action, vindicatio per sponsionem or per formulam
petitoriam, Vindiciae dicendae was apparently superseded by the
interdicts Utrubi and Uti possidetis ; which, accordingly, would bear
the same relation to vindicatio that Quorum bonorum bore to
hereditatis petitio.
As these interdicts were required to determine the question who
should have possession pending the vindicatio, so it is clear that
a third anterior proceeding would be necessary to determine who
should have provisional possession during the pendency of litigation
on the interdict : and similarly we might imagine a fourth, a fifth,
and in fact an infinite series of anterior proceedings to be required.
We shall find, however, that this regressus ad infinitum was stopped
at the third term by means of an auction (fructus licitatio), § 166,
a process of a very summary character. If a party attempted to
defeat this provision by refusing to take part in the auction, his
opponent was aided by interdicta Secundaria, § 170. It may seem
that opposition to the issue of interdicta Secundaria would again
iv. §§ 138-170.] DE INTERDICTIS 599
open out a vista of an infinite series of anterior steps ; but, doubtless,
the only means of preventing the issue of interdictum Secundarium
was an instant consent to co-operation in fructus licitatio.
Fructus licitatio was obsolete in the time of Justinian : in modern
Italy and Germany it is superseded by a process called Possessorium
Summarissimum ; in which the judge on a brief inquisition pro-
visionally awards possession to the party who proves the last act of
undisturbed possession.
The proceedings in a double interdict were somewhat complicated,
but the decision ultimately depended on the result of the trial of one
of the sponsionum formulae. The interdict Uti possidetis was of
the following form : Uti eas aedes, quibus de agitur, nee vi nee clam
nee precario alter ab altero possidetis, quo minus ita possideatis, vim
fieri veto. De cloacis hoc interdictum non dabo : neque pluris quam
quanti res erit ; intra annum, quo primum experiundi potestas fuerit,
agere permittam, Dig. 43, 17, 1, cf. 160. 'Whichever party has
possession of the house in question, without having acquired it either
by violence, or clandestinely, or by leave and licence of the adver-
sary, the violent disturbance of his possession I prohibit. Sewers
are not included in this interdict. The value of the thing in dispute
and no more may be recovered, and I will not allow a party to pro-
ceed in this way except within the first year of days available for
procedure (annus utilis).' The right of the possessor was not
affected if his possession was commenced either by violence, or
clandestinely, or by permission in respect of any other person than
the defendant. Inst. 4, 15, 4.
The interdict Utrubi was of the following form : Utrubi hie
homo, quo de agitur, majore parte hujusce anni fuit, quominus is
eum ducat, vim fieri veto, Dig. 43, 31. 'Whichever party had
possession of the slave in question during the greater part of the
preceding year I prohibit violence being used to prevent him from
taking the slave.' The same exceptions of violence, clandestinity,
and permission, as in the interdict Uti possidetis, were either
expressed or understood. Before Justinian's time Utrubi had been
assimilated to Uti possidetis, that is, comparative length of posses-
sion within the year was made immaterial, Inst. 4, 15, 4. 'But at
the present time the practice is different ; for both interdicts, so far
as the question of possession is concerned, are on the same footing ;
so that in respect both of land and movables judgment goes for
him who proves that he was in actual possession at the moment of
joining issue in the action, not having acquired it from the other
party either by violence, or clandestinely, or by his leave and licence.'
Thus the protection of these interdicts is generally afforded to the
party in actual possession, the question of his right to possess being
600 DE ACTIONIBVS [iv. §§ 138-170.
disregarded. And this protection of possession is allowed even
against the owner himself, who cannot plead exceptio dominii, but to
recover possession must prove his title by an independent vindicatio.
Utrubi and Uti possidetis are classed by Gaius under the head of
interdicta Retinendae possessionis. This was their category when
either party succeeded in proving that he was in actual possession at
the time of bringing the interdict, unless such possession could be
impeached by the other party on one of the above mentioned
grounds : but the exceptions, vi clam aut precario, when sustained
by the non-possessor, might in fact bring Utrubi and Uti possidetis
under the category of interdicts Recuperandae possessionis. If, that
is to say, a litigant proved that he had actual possession, but his
possession was shown to be vitiated by violence, secrecy, or permission,
he was dispossessed and his opponent who was equally plaintiff in
the action was reinstated in possession, which he was presumed
never to have lost, Dig. 43, 17, 3, pr. Utrubi was clearly a
recuperatory interdict in its original form: but it might be so
equally, in virtue of the exceptions, after its form had been assimi-
lated to that of Uti possidetis. Baron, § 120. Sohm, p. 353.
§ 154. The interdict Unde vi (or De vi) which was applicable only
to land had two forms, one of which is called by Cicero interdictum
quotidianum, and redressed cases of ordinary violence (vis quoti-
diana), while the other was invoked in cases of armed violence (vis
armata). The exceptio vitiosae possessionis (vi, clam, precario) could
be pleaded as a defence to the former, but not to the latter, interdict.
Like Uti possidetis and Utrubi the interdict Unde vi was based
simply on the ground of possession, not on title or right to possess.
The interdictum quotidianum has been thus restored from indica-
tions in Cicero, Pro Caecina and Pro Tullio (Caec. 31 § 91 ; Tull. 19
§ 44) : Unde tu aut familia aut procurator tuus ilium aut familiam
aut procuratorem illius in hoc anno vi dejecisti cum ille possideret,
quod nee vi nee clam nee precario a te possideret, eo restituas. ' In
the place whence thou or thy slaves or procurator hast this year
violently ousted him or his slaves or procurator from possession,
which possession he held without having acquired it from him either
by violence, or clandestinely, or by his leave and licence, in that place
do thou reinstate him in possession ' (cf. Lenel, p. 379 et seq.).
The interdict De vi armata may be restored as follows : Unde tu aut
familia aut procurator tuus ilium aut familiam aut procuratorem illius
vi hominibus coactis armatisve dejecisti eo restituas. ' In the place
whence thou or thy slaves or procurator hast violently ejected him
or his slaves or procurator by men assembled or armed, in that
place do thou reinstate him in possession.' This differed from the
ordinary interdict by the omission of the exceptions, and the
iv. §§ 138-170.] VNDE VI 601
omission of limitation to a year. (Cf. Roby, 1, p. 462 et seq., 2,
App. D, pro Caecina ; Sohm, p. 354 et seq.)
The interdict Unde vi only applied to immovables. Illud utique
in dubium non venit, interdictum hoc ad res mobiles non pertinere,
Dig. De vi et de vi armata, 43, 16, 1, 6. ' It is certain that this
interdict is not available in the case of movables.'
The right of the defendant in the ordinary interdict (quotidianum)
to plead by way of exception the vices (violence, secrecy, permission)
by which the plaintiff's possession was tainted, was apparently
deemed to be abrogated by a constitution of the emperors Valentinian,
Theodosius, and Arcadius, A. D. 389, Cod. 8, 4, 7. 'Whoever dares
to seize by violence things in the possession of the treasury or of
private persons without waiting for a judicial order, shall restore
possession, and, if he is proprietor, shall forfeit his property, if he is
not proprietor, shall forfeit the value.' In accordance with the spirit
of this constitution, the dispossessor was no longer allowed to plead
the exceptions in the old form of the interdict, and they are omitted
in the new form which we find in the Digest : Unde tu ilium vi
dejecisti aut familia tua dejecit, de eo quaeque ille tune ibi habuit
tantummodo intra annum, post annum de eo quod ad eum qui vi
dejecit pervenerit, judicium dabo, Dig. 43, 16, 1. 'The land (or
house) whence thou or thy slaves hast violently ejected such a one,
and the movables which he had therein, shall be recoverable by
action within a year ; after the expiration of a year he shall only
recover what came into the hands of the dispossessor.' That is to
say, the distinction between vis armata and vis quotidiana was no
longer recognized. For the difference between the meaning of vis in
the interdicts unde vi, uti possidetis, and quod vi aut clam respectively
see Windscheid, 1 § 160, n. 5.
Although violence, armed or unarmed, was prohibited to be em-
ployed for the recovery of possession even from possessor vitiosus,
yet to repel violence by violence in the defence of possession was
permitted, Dig. 43, 16, 3, 9. 'An armed aggressor may be lawfully
repelled by arms, but this must be immediately, not after an interval,
and we may not only resist ejectment, but eject the ejector, provided
that no interval has elapsed and it is done forthwith.' Ibid. 17. 'A
possessor who is violently ejected and recovers possession imme-
diately by force is understood rather to return to his former position
than to possess by violence. Therefore, if I eject you by force, and
am immediately ejected by you, and then eject you again, you may
have the interdict Unde vi.'
We have seen that Uti possidetis and Utrubi, though called
interdicts Eetinendae possessionis, were also in effect interdicts
Eecuperandae possessionis whenever any of the vitia possessionis
602 DE ACTIONIBVS fiv. §§ 138-170.
I mm
was established by the other party : that if the possession of the
actual possessor was tainted with one of three vices, if it was
acquired from the other party furtively (clam), acquired from him by
violence (vi), or held of him by his leave (precario), then his adversary
recovered possession. What, then, it may be asked, was the use of
a distinct interdict Kecuperandae possessionis, the interdict Unde vi,
which, like the Uti possidetis, was only available for a year ? The
answer is, that Uti possidetis could only have the effect of restoring
possession when the dispossessor was in present possession ; it gave
no redress when a third party was the present possessor : in such cases
the party dispossessed required a different remedy, and this was given
him in the interdict Unde vi, which could be maintained against a
dispossessor for damages, whether the latter continued in possession
or not. Further, by Uti possidetis the intermediate profits (fructus)
were only recoverable from the commencement of the suit, by Unde vi
from the time of the ejectment ; and the remedy of the dispossessed
person by Uti possidetis was barred by the vices of his own posses-
sion, not so his remedy by Unde vi, though, as we see by the text,
§§154, 155, this difference only applied to vis armata, when Gaius
wrote.
As violent dispossession was remedied by the interdict Unde vi, so
other interdicts remedied dispossession whose inception was clandes-
tine or permissive. An interdict De clandestina possessione seems
to be mentioned, Dig. 10, 3, 7, 5, though this more probably refers to
a particular application of the interdict Uti possidetis, than to be
a special interdict of itself (cf. Lenel, p. 377, n. 7). Such a special
interdict would scarcely be required in the case of immovables, for
as a possessor was not dispossessed until he had notice of the
invasion, he could immediately maintain Uti possidetis, Dig. 41, 2,
6, 1 — retinet ergo possessionem qui ad nundinas abiit — or he could
by attempting an entry convert the clandestine into a violent dis-
possession. Nor would it be required for movables, for clandestine
dispossession of a movable might be redressed by Utrubi combined,
perhaps, with an exhibitory interdict or order of production.
Accordingly, it is generally supposed that no special interdict
against clandestine dispossession ever existed.
The interdict De precario was in these terms ; Quod precario ab
illo habes aut dolo malo fecisti, ut desineres habere, qua de re agitur,
id illi restituas, Dig. 43, 26, 2, pr. ' The possession of the thing in
question which thou boldest by the permission of such a one, or hast
fraudulently ceased to hold, do thou restore to him.'
Before we quit this topic we may take the opportunity of considering
some of the respects in which the relation called Precarium differed
from a closely allied institution, the contract called Commodatum.
iv. §§ 138-170.] DE INTEKDICTIS 603
(1) Precario rogans (the holder of a thing merely by permission of
another) generally had what may be called derivative possession :
Commodatarius (the borrower) never had more than detention.
(2) The obligation in Precarium which was not originally regarded
as a contract, cf. Sohm, p. 354, n. 5, is purely unilateral and on the
side of precario rogans, being simply that he should restore the thing
to the person for whom he holds it. Precario dans (the person who
allows another to hold property for him) is under no obligation, not
even the semi-bilateral obligation for impensae &c., which is in-
cumbent on Commodans (the lender).
(3) Precario rogans is not, like Commodatarius, responsible for
diligentia, Dig. 43, 26, 8, 3. Precarium seems at first to have been
applicable only to land but afterwards to have been extended to
movable property.
At a late period of Roman law Precarium was so far regarded as
a contractual obligation that Precario dans could recover by an actio
praescriptis verbis, Dig. 43, 26, 2, 2, and 19, 2. Thus Precario dans had
two remedies, an action to recover possession (interdictum de precario)
and an action on contract: Commodans had only his action on contract ;
interdicts, as we have stated, not being employed to enforce contracts.
§ 156. Paulus mentioned another kind of interdicta duplicia,
namely, those for either acquiring or recovering possession. Sunt
interdicta, ut diximus, duplicia tarn reciperundae quam apiscendae
possessionis, Dig. 43, 1, 2, 3. These are the interdicts, Quern fundum,
Quam hereditatem, Quern usumfructum, which have been already
quoted, § 89, whereby, if the defendant in a real action refused to
give security judicatum solvi, possession was transferred to the
plaintiff, who in some cases would acquire, in others recover
possession. Quern fundum was the interdict employed in Vindicatio:
Quam hereditatem in Hereditatis petitio : Quern usumfructum in the
action, claiming an usufruct. In interdict procedure, instituted for
the retention of possession, analogous functions were performed by
further interdicts called interdicta Secundaria, § 170.
Pending litigation respecting Urban servitudes the plaintiff was
protected by a peculiar institution, the interdictum Demolitorium
based on Operis novi nuntiatio, the nature of which demands a
passing notice. If A, a person entitled to some real right (mort-
gagee, emphyteuta, superficiarius), was aggrieved by some architec-
tural innovation (aedificatio, demolitio) on the part of B, whereby
an urban servitude over the tenement of A was asserted or some
urban servitude [jus habendi or jus prohibendi] belonging to A,
as owner of a dominant tenement, was violated, A was entitled
to serve a formal inhibition or private injunction on B (prohibitio,
operis novi nuntiatio) summoning him to desist from the innovation*
604 DE ACTIONIBVS [iv. §§ 138-170.
On this summons B was bound to desist from his work until he
either obtained from the praetor a dissolution or discharge of the
summons (remissio, raissam facere nuntiationem) : or entered into
a satisdatio or cautio de demoliendo, security that the structure
should be demolished in the event of A as plaintiff succeeding
in a future actio Negate ria or Confessoria, i. e. establishing his
own jus prohibendi, which would be the same as disproving B's
jus aedificandi. If without obtaining such remissio or giving such
cautio B persisted in his work, he was compelled to demolish it
by the interdictum Demolitorium. If he desisted from the work
for the present, but refused to oppose A's suit in the regular course
by entering into satisdatio de re defendenda, it was the duty of
the judge to compel him to enter into a stipulation that he would
not again attempt to build before he established his own jus aedi-
ficandi, or disproved A's jus prohibendi, as plaintiff in a suit.
This would be actio negatoria of a jus altius non tollendi, if he
denied that he was ever under an urban servitude to the tenement
of A : actio confessoria of jus altius tollendi, if he affirmed that the
servitude was extinguished by usucapio libertatis : or some other actio
confessoria, if he claimed a dominant servitude over the tenement of A.
Pending disputes on wrongs relating to land a similar function
was discharged by the interdictum Quod vi aut clam. On a pro-
hibitio from a neighbour, who might have a real right or be a mere
lessee, prohibitus was obliged to desist from any agricultural innova-
tion (ploughing up pasture, cutting trees, polluting streams, &c.)
until he offered security (satisdatio judicio sisti) in any suit in which
he might be made defendant, Dig. 43, 24, 3,5; or proved by way of
exceptio his jus faciendi, or by way of Negation disproved his
neighbour's jus prohibendi, as plaintiff in some real action or, if
the opus was on his own land, in Uti possidetis, Dig. 43, 17, 3, 2.
If he persisted in his operation in spite of the prohibitio, or avoided
prohibitio by omitting to give notice to the party interested, the
interdictum Quod vi aut clam compelled him to efface it and to
pay damages for the harm it occasioned.
The interdicts which Gaius calls double are called by Ulpian
mixed, Dig. 44, 7, 37, 1. 'Mixed actions are those wherein each
party is plaintiff, as the action for determining boundaries, for
partition of an inheritance, for partition of joint property, and the
interdicts Uti possidetis and Utrubi.' The effect of this duplicity
or mixture of characters was that each party was liable to con-
demnation and absolution. According to Justinian, the three per-
sonal actions just named are called Mixed because they involve ques-
tions both in rem and in personam, Mixtam causam obtinere videntur,
tarn in rem quam in personam, Inst. 4, 6, 20. Another effect of the
iv. §§138-170.] DE INTERDICTIS 605
duplicity of the interdicts was, as we shall presently see, to increase
the number of stipulations in the proceeding by Sponsio.
In the system of statute-process (legis actio), Vindicatio is framed
in the form of a judicium duplex. The contention of the defendant
was not merely a negation of the plaintiffs claim, but also an
affirmation of the defendant's claim, a contravindication. Praetor
interrogat eum qui cedit an contra vindicet, 2 § 24 ; cf. 4 § 16. It
was not necessary that the cross claims of the parties should be
identical in character. On the one side there might be a claim of
status, on the other of property, one party vindicating as free the
person whom another claimed as slave : or one party vindicating the
freedom of a person whom another, as transferee of patria potestas,
claimed to be his bondsman (mancipium) ; or one party asserting
the independence (sui juris) of a person whom another claimed as
filius familias or as subject to patria potestas, cf. 1 § 134.
Similarly under the legis actio procedure Hereditatis petitio,
3 § 32, comm., would probably be in the form of judicium duplex ;
for Hereditatis petitio is a species of Vindicatio.
Vindicatio and Hereditatis petitio are related to the actions Corn-
muni dividundo and Familiae herciscundae as wholes to parts : the
former lay claim to integral ownership and integral succession
where the latter merely claim partial ownership and partial suc-
cession, Inst. 4, 6, 20. The former became judicia simplicia in the
later system of law, while the latter remained judicia duplicia.
Ihering, § 52.
In English jurisprudence both parties are said to be equally
plaintiffs and equally defendants in the actions called Quare impedit
and Keplevin.
Uti possidetis was sometimes judicium simplex. We may dis-
tinguish three applications of this procedure :
(1) When both parties claim to be in actual possession and one
of them is found to be truly in possession without having acquired
it from the other by violence, secrecy, or permission. Uti possidetis
is then really an interdictum Retinendae possessionis.
(2) When the possession of the actual possessor is found to be
vitiated by violence, secrecy, or permission, he is displaced, and the
non-possessor is reinstated. Uti possidetis is then in substance and
effect interdictum Recuperandae possessionis. In both of these cases
it is judicium duplex.
(3) Uti possidetis might further be brought against a defendant
who made no contention that he himself was or ought to be in
possession, but who was guilty of some disturbance or molestation
of the possessor ; e. g. by prohibitio : Qui colere fundum prohibetur,
possidere prohibetur, Dig. 43, 17, 3, 4. Eum qui aedificare pro-
606 DE ACTIONIBVS [iv. §§ 138-170.
hibeatur, possidere quoque prohiberi manifestum est, Dig. 41, 2,
52, 1. Etenim videris mihi possessionis controversial!! facere, qui
prohibes me uti mea possessione, Dig. 43, 17, 3, 2.
Savigny holds that No. (3) was the original application of Uti
possidetis ; and that Nos. (i) and (2) were subsequent extensions of
its employment and due to jurisprudence, i. e. the ingenuity of the
jurists: the reverse is the prevalent doctrine, Baron, § 120.
§ 163. The formula arbitraria in Unde vi must have contained the
clause, Unless the defendant obey the judge's order of restitution ;
the rest is uncertain. The analogy of the other interdicts suggests
something to the following effect : If it appear that the defendant
has disobeyed the praetor's order to reinstate the plaintiff, then,
unless the defendant comply with the judge's order of restitution, do
thou, judge, condemn him in all the damages the plaintiff shall have
sustained.
The mode of restitution would be prescribed by the judex, who
would probably require the restitution of all movables that had been
removed, though these were not mentioned in the original form of
the interdict, § 154.
The jurists who considered that a defendant who desired a formula
arbitraria was guilty by confession of the delict laid to his charge,
must have supposed that the only function of the judex in this case
was assessment of damages (litis aestimatio), Dig. 9, 2, 25, 2.
§ 165. Huschke (Stud, des rom. Eechts. § 11) supposes that the
sponsio on Quorum bonorum was of the following form : If the
praetor Quintus Caepio in accordance with his edict has granted me
possession of the goods left by Turpilia, and if in contravention of
his edict thou hast not restored to me the portion of those goods
which thou possessest as heir or as occupant, or hast fraudulently
ceased to possess ; dost thou promise to pay me such and such a sum ?
I promise. Cic. ad Fam. 7, 2 1 ... sponsionem illam nos sine periculo
facere posse ; ' Si bonorum Turpiliae possessionem Q. Caepio praetor
ex edicto suo mihi dedit.' (Cf. Lenel, § 227, and p. 359.)
The stricti juris action based on this sponsio would be followed by
another, which was doubtless called judicium Secutorium, § 166 a.
The latter would probably contain an intentio in factum concepta, of
the form : Si Aulus Agerius Numerium Negidium sponsione vicit,
and a formula arbitraria such as that already described for the non-
penal procedure : Ni Numerius Negidius Aulo Agerio bona ilia
judicis arbitrio restituat, quanti ea res erit, judex Numerium
Negidium Aulo Agerio condemna.
After the first appearance before the praetor (in jus vocatio) and
the issue of the interdict (interdictum redditum or editum) it would
be necessary to wait a certain time to see whether it was obeyed or
IV. §§ 138-170.] DE INTERDICTIS €07
disobeyed by the defendant ; and if it was disobeyed, there would be
at any time within the period of a year a second in jus vocatio, or at
least a reappearance in jure secured by a vadimonium which the
parties entered into at the time of their first appearance, for the
nomination of the judex and the delivery of the formula arbitraria,
if the procedure was non-penal ; or for the sponsio and delivery of
the formulas of action on the sponsio and the judicium secutorium^
if the procedure was penal.
The interdict or command of the magistrate, like the law or
command of the legislator, has two members (protasis or minor
premiss, and apodosis or conclusion) ; or two terms, an antecedent
(a title expressed by the middle term B) and a consequent (an
obligation expressed by the major term A). The antecedent term is
usually introduced by a relative (Quorum bonorum, Unde dejecisti,
Uti possidetis, &c.) equivalent to a Si : accordingly any interdict may
be paraphrased by the proposition : If such and such antecedent title
[B, middle term] exists, then thou [C, minor term] art under such
and such consequent obligation [A, major term] : and this antecedent,
simple as it may appear, is usually analysable into a variety of
conditions. Thus in Quorum bonorum the antecedent clause and
question for the judex is not only whether certain goods are detained
by the defendant, but also whether the plaintiff had obtained a grant
of possession of these goods, whether such grant was rightfully
obtained, and in accordance with the provisions of the edict, &c.
§ 166. From the two sponsiones and two restipulationes which are
mentioned, it appears that Gaius is now speaking of double interdicts,
and from the words eum fundum easve aedes, § 166 a, it appears
that he is speaking not of Utrubi but of Uti possidetis.
After a first in jus vocatio in which an interdict Uti possidetis had
been obtained, there took place, by prearrangement, a molestation of
one of the litigants by the other. In the disorderly beginnings of
society this molestation was doubtless often in reality a turbulent
defiance of the magisterial interdict : but in more orderly periods
both parties would be desirous of trying their right by legal course,
and the steps taken by both would be prearranged with a view of
satisfying the conditions of interdict procedure (vis ex conventu).
So a trespass, or at least an act that contains many of the elements
of a trespass, is often arranged to be committed for the purpose of
enabling parties to try a right before English tribunals. Cf. §§ 166,
170 ; Cic. pro Caec. 1, 7, 8/10, 11 ; pro Tull. 8 ; Roby, App. D, p. 515.
It is probable that the lacuna preceding this paragraph contained
an explanation of vis ex conventu and of other parts of the procedure
in interdicta duplieia.
After the vis ex conventu had been simulated, there took place
608 DE ACTIONIBVS [iv. §§ 138-170.
a second in jus vocatio, or reappearance in jure in pursuance of the
vadimonium, at which the parties entered into five different
stipulations.
Just as interdict procedure was necessary in order to determine
which litigant should have interim possession pending the vindicatio,
so it was necessary to determine who should have interim possession
pending a possibly protracted interdict procedure. This was accom-
plished by means of Fructus licitatio, which took place in the second
appearance before the praetor, and was followed by either (a) the
Fructuaria stipulatio, or satisdatio judicatum solvi.
Each party then wagered a penal sum in two characters, for each
party was both plaintiff and defendant : and, as a sponsio was a
unilateral contract, in order to produce a bilateral contract, that is,
to bind both parties and constitute a single bet or wager in the
modern sense of the term, it was necessary to have two stipulations,
that is, a sponsio and a restipulatio. For the purpose, therefore, of
making two wagers the parties entered into four stipulations (two
sponsions and two restipulations) ; i. e. (&) one sponsio and (c) one
restipulatio in which a litigant was promisor and promisee as
plaintiff, and (d) a second sponsio and (e) a second restipulatio in
which he was promisor and promisee as defendant. The sponsio
would be a stipulation to the following effect : Si adversus edictum
praetoris possidenti mihi vis a te facta est, tot nummos dare spondes ?
Spondeo : the restipulatio to the following effect : Si adversus edictum
praetoris possidenti tibi vis a me facta non est, tot nummos dare
spondes ? Spondeo. Thereby each party would be bound to pay, or
entitled to receive, two penal sums, according as the actions brought
on these four stipulations decided the issue which the stipulations
raised.
A judex was then appointed who tried the four actions.
Then if the victor in the four actions had not been the higher
bidder at the Licitatio, the judex decided a fifth and sixth action :
namely one called judicium Secutorium or Cascellianum, which had
a formula arbitraria, and whereby possession of the movable or
immovable and its fruits was recovered from the higher bidder ; and
another on (a) the Fructuaria stipulatio, to recover from the higher
bidder a penal sum equal to the value of the fructus.
Instead of suing on (a) the Fructuaria stipulatio the victor had the
option of bringing judicium Secutorium for the recovery of this penal
sum, and then he was protected against the event of his opponent's
insolvency by sureties (satisdatio). It may be asked what com-
pensating disadvantage of this course should ever induce the victor to
sue on (a) Fructuaria stipulatio. Perhaps, as Krueger suggests, if he
sued for the penal sum by Secutorium with satisdatio, then when he
iv. §§138-170.] DE INTERDICTIS 609
brought Cascellianum he only recovered the Ees without the interim
fructus. The satisdatio would thus increase his certainty of obtaining
the amount of the penal sum, but would diminish by the value of the
fructus the total amount recovered.
Corresponding to the penal sum incurred by Fructus licitatio, and
secured by (a) Fructuaria stipulatio or Satisdatio of the litigant who
obtains possession pending interdict procedure, was the liability
in twice the value of the fructus incurred by the litigant who
obtained possession by Vindiciae dicendae pending statute-process.
Such at least appears to be the import of a partly conjectural frag-
ment of the Twelve Tables (Tab. 12, 3): Si vindiciam falsam tulit,
si velit is ... tor arbitros tris dato, eorum arbitrio . . . fructus
duplione damnum decidito. Festus. 'When temporary possession
has been wrongfully obtained (the question of property and the
value of the fruits of possession) may be decided by three arbiters,
by whose arbitration the wrongful possessor shall pay as a penalty
twice the value of the fruits of possession to the true proprietor.'
§ 170. From this paragraph it appears that as in Real actions the
defendant who declined to give satisdatio judicatum solvi and thus
impeded the process of the action was deprived of possession by the
interdicts Quern fundum, Quam hereditatem, Quern usumfructum,
§ 156, comm. ; so a suitor whose contumacious refusal to take the
regular steps prevented interdict procedure from accomplishing its
normal course was deprived of possession by interdicta Secundaria.
The mention of vis (qui VIM non faciet) shows that, subsequent
to the issue of the interdict and antecedent to further proceedings,
one act of the forensic drama was a conventional ejectment (vis ex
conventu), cf. § 166, comm. ; which has been identified by some
writers with what is called Deductio quae moribus fit in suits by
Sponsio, and perhaps with the Manuum consertio in Sacramentum,
§ 88, comm., § 13, comm.
The inquiry into the nature of POSSESSION has been purposely
postponed hitherto in order not to interrupt the exposition by Gaius
of the details of the possessory interdicts (Utrubi, Uti possidetis,
Unde vi) ; i e. those interdicts in which the mere fact of possession
is itself a title to the continuance or restoration of possession (as to
the nature of possession cf. Sohm, § 67).
Possession may be defined as a relation which consists of two
elements ; Detention, or physical power over a thing, exercised
either by oneself or by some other person as one's representative,
e. g. by depositarius or commodatarius for depositor or commodator,
and Animus domini, a certain intention on the part of the person in
possession, the intention of holding it against others as a proprietor
would, and so of deriving from it the benefits of ownership.
610 DE ACTIONIBVS [iv. §§ 138-170.
Theophilus, the colleague of Tribonian and author of the Greek
version of Justinian's Institutes, says : vffieadni eon TO ^n>xn 8t<rn6(ovros
Karfxfiv, 3, 39, 2. The meaning of this definition will best appear
from an examination of the instances in which according to the jurists
Possession does or does not exist ; and in particular from the contrast
of the cases where Possession is present with those where Detention,
i. e. mere physical control for another, the right of excluding others
belonging to him, is present but Possession, which is protected by
possessory interdicts, is absent, as e. g. in the case of depositarius
or commodatarius. Thus Possession in the sense in which we are
using it is equivalent to juristic Possession.
Possession in this sense, as opposed to mere Detention, is called
Possessio civilis, or simply Possessio.
Mere detention is called Possessio naturalis, corporaliter, Natu-
raliter tenere, In possessione esse. (For various meanings of the
terms Possessio civilis — naturalis cf. Windscheid, Pand. 1 § 148,
n. 12. Dernburg, Pand. 1 § 175.)
Juristic possession (jus possessionis) does not depend on a legal
title to possess (jus possidendi) like ownership, but simply on the fact
of a man's having actual control of a thing with the intention of
maintaining it. ' Hujus autem interdicti (uti Possidetis) proponendi
causa haec fuit, quod separata esse debet possessio a proprietate ;
fieri etenim potest, ut alter possessor sit, dominus non sit, alter
dominus quidem sit, possessor vero non sit ; fieri potest, ut et pos-
sessor idem et dominus sit.' Dig. 43, 17, 1, 2. Hence as far as the
possessory interdicts are concerned the law is indifferent whether the
possession is that of an owner or of a bona fide, or even that of a
mala fide possessor. But it is to be remembered at the same time
that these interdicts do not in any way shut out the owner who has
a right to possession from asserting his claim by vindicatio.
The characteristic of possessio civilis is the combination of physical
control with the Animus domini : but in certain singular or abnormal
instances we shall find that this differentia is wanting, and physical
control or detention in the name of another (alieno nomine), i. e.
possessio naturalis, is treated as juristic possession, e. g. in the case
of pledgee or mortgagee.
Possession accompanied with certain other extraneous conditions,
namely Titulus, Bona fides, and the absence of furtum, is trans-
formed by a cei-tain lapse of time into ownership ; and is called
Usucapion-possession, 2 §§ 40-61, comm. Our present purpose is
with Possession apart from these foreign elements : the Possession
which, as protected by Utrubi, Uti possidetis, and Unde vi, is often
called Interdict-possession.
The slave and filiusfamilias were incapable of juristic possession.
iv. §§ 138-170.] POSSESSION 611
Quod ex justa causa corporaliter a servo tenetur, id in peculio servi
est et peculium, quod servus civiliter quidem pcssidere non posset sed
naturaliter tenet, dominus creditur possidere, Dig. 41, 2, 24. 'When
a slave has corporeal control of a thing originating from some legal
cause, the thing is in his peculium, and this peculium which he cannot
have juristic possession of, though he holds it in fact, his master has
possession of.' Qui in aliena potestate sunt, rem peculiarem tenere
possunt, habere possidere non possunt, quia possessio non tantum
corporis, sed et juris est, Dig. 41, 2, 49, 1. 'A person under power
is able to keep under his actual control a thing belonging to his
peculium, but not to possess it, for the conditions of possession are
not purely physical, but partly legal ; ' i. e. possession is not mere
physical detention, but detention by a person who is regarded by
law as being capable of possessing. In respect of this incapacity
of filiusfamilias we must except the peculium castrense and quasi-
castrense. Filiusfamilias et maxime miles in castris adquisitum
usucapiet, Dig. 41, 3, 4, 1. 'What a filiusfamilias and particularly
what as a soldier he acquires in the field is converted by usucapion-
possession into ownership.'
A manager or agent (procurator) has detention, not possession. Nee
idem est possidere et alieno nomine possidere ; nam possidet cujus
nomine possidetur; procurator alienae possession! praestat ministe-
rium, Dig. 41,2, 18, pr. 'Possession differs from detention in the name
of another, for he has possession of a thing in whose name it is held by
another. An agent is the instrument of another person's possession.'
Generaliter quisquis omnino nostro nomine sit in possessione, veluti
procurator, hospes, amicus, nos possidere videmur, Dig. 41 , 2, 9. ' The
detention of a thing by another entirely for us as that of a procurator,
guest, or friend is our possession.' Cf. 2 § 95. Inst. 2, 9, 5.
A borrower (commodatarius) has only detention, the lender (com-
modator) retains possession. Eei commodatae et possessionem et
proprietatem retinemus, Dig. 13, 6, 8.
A hirer (conductor) has only detention, the letter (locator) pos-
session. Et fructuarius, et colonus, et inquilinus sunt in praedio et
tamen non possident, Dig. 43, 26, 6, 2. 'The usufructuary, hirer
of land, and lodger have occupation, but not possession.' Per
colonos et inquilinos aut servos nostros possidemus, Dig. 41, 2, 25, 1.
'Our farmers, lodgers, and slaves are instruments of our possession.'
The Emphyteuta, as is thought by most modern writers, though
a contrary opinion is held by Windscheid (1 § 15, 4, n. 7) and others,
had possession. For the nature of Emphyteusis cf. 3 § 145, comm.
The emphyteuta had a jus in re nearly amounting to ownership,
for he could recover the land by actio vectigalis in rem, which was
analogous to vindicatio from any possessor and, as long as he paid
B r 2
612 DE ACTIONIBVS [iv. §§ 138-170.
his rent (vectigal) he was irremovable. The real right of the emphy-
teuta must not, however, be confounded with his possession, for, like
ownership and possession, they are two distinct legal relations, the
one being protected by the actio in rem, the other by a possessory
interdict. The dominus probably retained usucapion-possession by
means of the tenant.
The mortgagor or pledger had usucapion-possession, the mort-
gagee or pledgee had interdict-possession. Qui pignori dedit ad
usucapionem tantum possidet ; quod ad reliquas omnes causas per-
tinet, qui accepit possidet, Dig. 41, 3, 16. The mortgagee could
recover the pledge by actio in rem quasi Serviana or hypothecaria,
Inst. 4, 6, 7. But this is the action by which the real right of the
mortgagee or pledgee is asserted, which must be distinguished from
the possessory interdict by which his possession is protected. Thus
instead of identifying the mortgagee's jus in re and his interdict-
possession, it is correct to regard his jus in re and his interdict-pos-
session as distinct though possibly concurrent. In a hypotheca,
indeed, which is an agreement establishing a jus in re without
delivery, the mortgagee or pledgee acquired no possession. The
usucapion-possession attached to the mortgagor or pledgor by means
of the mortgagee or pledgee if possession was transferred, and this
was in the interest of the mortgagee or pledgee, whose security
against third persons would be strengthened through the consequent
acquisition of ownership by the mortgagor or pledgor.
The depositary has mere detention, the depositor retaining his
interdict-possession. The depositary only acquires possession in one
case, that is, when he is made a stake-holder for this very purpose,
Dig. 16, 3, 17, 1. 'Not only the property but also the possession
of the thing deposited remains with the depositor, except when a
thing is deposited with a stake-holder (sequester) not simply for safe
custody : for in this case the sequestrator possesses, the object being
to prevent the time of usucapion from proceeding.' It seems, then,
that in such Sequestration the interim usucapion-possession cannot
be counted by the victor in the suit, Dig. 41, 2, 39.
With Permissive holding of a thing (precarium) possession
passes, unless it is expressly agreed that only detention shall pass.
Meminisse autem nos oportet, eum qui precario habet etiam possi-
dere, Dig. 43, 26, 4, 1. 'We must remember that the holder of
a thing by permission has possession.' Is qui rogavit, ut precario
in fundo moretur, non possidet, sed possessio apud eum qui concessit
remanet, Dig. 43, 26, 6, 2. 'He who has asked to be allowed to
remain on land merely at the will of the owner does not possess,
but possession remains with the grantor.' The grantor always re-
tained usucapion-possession, Dig. 43, 26, 15, 4.
iv. §§ 138-170.] POSSESSION 613
The person in the enjoyment of a personal servitude has no pos-
session. Usufructuarius usucapere servum non potest, primum quia
non possidet, Dig. 41, 1, 10, 5. ' The usufructuary cannot acquire the
slave by usucapion, in the first place because he has no possession.'
Naturaliter videtur possidere is qui usumfructum habet, Dig. 41, 2,
1 2, pr. ' The usufructuary seems to have only natural, not juristic
possession.'
[It would be a fallacy to argue that detention is possession
because it is naturalis possessio, just as it would be to argue that
nine is ten because it is ten minus one, for an epithet sometimes
detracts from, instead of adding to, the connotation of a word.]
As the usufructuary has no possession, it follows a fortiori that
the usuary has no possession. [Although the jus in re called usus
must be distinguished from possession, the words usucapio, usurpatio
show that in the older language usus = possessio.]
Servitudes, though not the subject of possession, yet as res
incorporales, were the subject of quasi-possession, § 139, e. g. Qui
fundi possessionem vel ususfructus quasi possessionem amisit, Dig. 4,
6, 23, 2 ; Si quis diuturno usu et longa quasi possessione jus aquae
ducendae nactus sit, Dig. 8, 5. 10, pr. : which was called juris
possessio in contradiction to true possession or corporis possessio ;
Qui possessionem vel corporis vel juris adeptus est, Dig. 43, 26, 2, 3 :
though if juris possessio was the proper name for possession of
a fraction of property, possession that bore the same relation to the
totality of property should have been called, not corporis possessio,
but dominii possessio.
The quasi-possession of servitudes, which consists in the actual
enjoyment of the right, whether under a valid title or not, like the
possession of corporeal things, was protected by interdicts. The
quasi-possession of rural servitudes, such as iter, actus, via, jus aquae
ducendae, &c., was protected by special interdicts : e. g. Quo itinere
actuque private, quo de agitur, vel via hoc anno nee vi nee clam nee
precario ab illo usus es, quo minus ita utaris, vim fieri veto, Dig. 43,
19, 1, pr. 'The foot-way, horse- way, carriage-way in question, which
thou hast used within a year without having done so by violence, or
clandestinely, or by permission in respect of the opposite party, the
violent hindrance of thy continuing to use them I prohibit.'
Urbane servitudes, whether positive, as jus tigni immittendi, or
negative, as jus altius non tollendi, being closely connected with
possession of an immovable, according to Savigny, were always
protected by Uti possidetis : according to Vangerow, the protection
of the status quo was always by interdictum Quod vi aut clam or
Operis novi nuntiatio, § 355. Personal servitudes, e. g. ususfructus,
usus, fructus, were protected, according to circumstances, by Uti
614 DE ACTIONIBVS [iv. §§ 138-170.
possidetis, Utrubi, or Unde vi, with a special differentiation, which
constituted them interdicta utilia, Vat. fr. 90.
Four of the cases we have mentioned, the possession of the
emphyteuta, the mortgagee, the sequestrator, and the permissive
holder, are generally regarded as anomalous ; for possession is com-
posed of two elements, physical detention and the intention of holding
the property as owner (animus domini), and none of these four
possessors can be said to have the animus domini. In these four
cases, and these alone, it is necessary to assume that the law
recognized a derivative or transferred possession, in which one of
the elements of original possession, the animus domini, is absent, and
replaced by what may be called the animus alienam possessionem exer-
cendi. (For a different view of the animus required as an element of pos-
session, which is applicable in all cases alike, see Sohm, § 67, n. 3.)
In three of the above-mentioned cases usucapion-possession re-
mained with the person from whom the interdict-possession was
derived (the person from whom the emphyteusis was held, the
mortgagor or pledgor, the person who allowed the thing to be held
precariously), and only interdict-possession passed to the derivative
possessor (the emphyteuta, the mortgagee or pledgee, the person
allowed to hold the thing precariously). In all the four cases (in-
cluding Sequestration) the dominus lost the protection of the inter-
dicts Ketinendae possessionis, which were transferred to the derivative
possessors. The grantor of precarious tenancy was also protected
by the interdict De precario, an interdict Kecuperandae possessionis.
The Superficiarius (holder of a Keal right (jus in re) in a house
of which the owner of the ground is proprietor, e. g. a person who
with permission of the landowner has built out of his own materials
a house on and therefore belonging to another person's land, ' quod
inaedificatur solo solo cedit ') has, according to Savigny, only juris
quasi-possessio : but this is inconsistent with the fact that he is
protected by the interdicts Unde vi and De precario, Dig. 43, 16, 1, 5.
According to Vangerow he has Derivative possession like the four
above-mentioned : but this is inconsistent with the fact that he is
protected by the special interdict De superficiebus, while the owner
of the soil retains the protection of Uti possidetis, Dig. 43, 17, 3, 7,
which in Derivative possession is transferred to the Derivative pos-
sessor. The true doctrine, then, appears to be that Superficiarius
has Original possession of the house, though the landlord has pos-
session of the soil, Baron, § 183 (but cf. on this very difficult subject
Windscheid, 1 § 154, n. 7). Superficies as a real right would be
vindicated by a special formula in factum concepta, which must be
distinguished from the possessory remedy — the interdictum de super-
ficiebus— Ait praetor : Uti ex lege locationis sive conductionis super-
iv. §§138-170.] POSSESSION 615
ficie, qua de agitur, nee vi nee clam nee precario alter ab altero fruimini,
quo minus ita fruimini, vim furi veto. Si qua alia actio de superficie
postulabitur causa cognita dabo. Savigny, 5, p. 81. Lenel, § 249.
As possession consists of two elements, one corporeal and one
mental, it is evident that it cannot be acquired by a purely mental
act. Apiscimur possessionem corpore et animo> neque per se animo
aut per se corpore, Dig. 41, 2, 3, 1. 'We acquire possession by the
conjunction of a corporeal and a mental act, and not by either
separately.' Neratius et Proculus et solo animo non posse nos ad-
quirere possessionem aiunt, si non antecedat naturalis possessio,
Ibid. 3. ' Intention alone does not suffice for acquiring juristic pos-
session unless preceded by natural possession or detention.' Deten-
tion necessarily implies not corporeal contact, but corporeal control,
and is the physical power of dealing with a subject as owner and
excluding any one else. The acquisition of detention consists in the
fact of obtaining this power which is never by a fictitious or sym-
bolical act, but by a real physical change of relation. The con-
tinuance of possession requires a continuance of both the elements,
which are essential to its acquisition, that is, both physical control
and the intention of enjoying as owner, or at least on one's own
account. Fere quibuscumque modis obligamur, isdem in contrarium
actis liberamur, cum quibus modis adquirimus, isdem in contrarium
actis amittimus. Ut igitur nulla possessio adquiri nisi animo et
corpore potest, ita nulla amittitur, nisi in qua utrumque (utrumque
= alterutrum, or read utcunque or utrumcunque) in contrarium
actum est, Dig. 50, 17, 153. 'As obligation is dissolved by a reversal
of the conditions under which it is created, so possession is lost by
a reversal of the conditions under which it is acquired. As its
acquisition demands the concurrence of a corporeal and a mental
condition, so its termination requires the reversal of one or the
other.' Ejus quidem quod corpore nostro teneremus [dicam] pos-
sessionem amitti vel animo vel etiam corpore, Dig. 41, 2, 44, 1.
'When we detain in person, possession may be terminated by either
a mental or a physical change.' Windscheid, 1 § 156, n. 2.
The physical condition, however, is not to be interpreted so
strictly in the continuance of possession as in its commencement ;
for continued possession permits a temporary suspension of physical
control, and only requires the power of reproducing this relation
at will : for instance, it is not lost if we have left a thing uninten-
tionally in a forest, but remember the exact spot ; or have stowed
a thing in a place of security, but forgot for the moment where we
put it ; or abandon an Alpine pasture in winter, with the intention
of revisiting it on the return of summer, Dig. 41> 2, 3, 13. 'Nerva
the son is of opinion that the possession of movables, excepting
616 DE ACTIONIBVS [iv. §§ 138-170.
slaves, only lasts so long as they are in our custody, that is so long
as we have power of obtaining natural possession or detention of
them.' There was an exception in the case of slaves, for a slave
while he was a fugitive was regarded as still in his master's possession,
and in the case of land, for a man did not lose possession of his
land which had been invaded in his absence until he had notice of
the invasion ; that is to say, he retained possession in the interim
solely by his mental disposition. Nam saltus hibernos et aestivos,
quorum possessio retinetur animo, licet neque servum neque colonum
ibi habeamus, quamvis saltus proposito possidendi fuerit alius in-
gressus, tamdiu priorem possidere dictum est, quamdiu possessionem
ab alio occupatam ignoraret, Dig. 41, 2, 44, 2, 45, 46. 'When a
winter or summer pasture, retained in possession without the instru-
mentality of slaves or tenants, solely by the mental relation, is
invaded by a stranger who has the intention of taking possession
of it, the prior possessor is not regarded as ejected from possession
until he has notice of the invasion. It is by reference to this laxer
interpretation and to these exceptions that we can understand the
opinion mentioned by Gaius, § 1 53, that possession may be retained
without a continuance of corporeal detention.
A guardian acting alone may of course acquire possession for an
infant ward, that is, a child under the age of seven. But what is
peculiar is that an infans, who is generally incapable of performing
any legal act, is able, it would seem, also to acquire possession for
himself, and this even without the sanction of his tutor in the case
of a gift, though requiring his sanction in other cases. Dig, 41,2,
22, 2 ; Cod. 7, 32, 3. In other matters, as we have seen, tutoris
auctoritas could only be given to a child infantia major, i.e. after
completion of seven years of age.
The possessor of a whole or a substance formed by the com-
bination of various parts (universitas reruni distantium) does not
separately possess with intention of ownership the various elements
of which it is composed. If, then, a man begins by possessing the
whole and completes the usucapion of the whole before its dis-
solution into its component parts, the result will depend on the
question whether all the parts belonged to the original proprietor
of the whole or some of them belonged to a third person. If some
of the materials belonged to a third proprietor, then, as these have
not been separately possessed during the period of combination, the
usucapion of them only begins to run after the dissolution of the
whole, Dig. 6, 1, 23, 7 ; Dig. 41, 1, 7, 11. This rule is not a singu-
larity of timber (Dig. 47, 3), but applies to all materials that have
been combined into a whole, whether movable, e. g. a flock of sheep,
or immovable.
iv. §§ 138-170.] POSSESSION ' 617
If all the materials belonged to the owner of the whole, then he
who acquires by usucapion the whole is owner of all the materials
if they are subsequently separated, just as he would be if he had
acquired property in the whole by tradition or any other valid form
of alienation from the original proprietor.
If the dissolution of the whole precedes the completion of usu-
capion, then the usucapion of the separate materials has to begin ab
initio, Dig. 41, 3, 23, pr. Thus, if a man has possessed a house for
nine years and six months, he will complete its usucapion or pre-
scription in another four months according to the law of Justinian :
but if any of the materials (windows, doors, columns, tiles) are
separated, he will require three years to acquire them by usucapion
as movables.
If. on the contrary, a person begins by possessing the materials
separately and after a time combines them into a whole, the question
whether his usucapion of the materials continues to run depends on
the principles which govern the loss of possession. Possession is
not lost by the absence of animus possidendi, but by a positive
animus non possidendi. As this cannot here be alleged to exist, the
usucapion of the materials will continue to run in spite of their
combination and will be completed as soon as if they had remained
separate, Dig. 41, 3, 30, 1. An exception is produced by the pro-
hibition of the Twelve Tables to sue for building materials as
long as they form a portion of a house (tignum junctum aedibus,
Dig. 47, 3, 1, pr.) : for, as agere non valenti non currit praescriptio,
§ 110, comm., the usucapion of the timber must be suspended
until the. house from any cause is demolished. Inst. 2, 1, 29.
Vangerow, § 204.
Having passed in review the nature of Possession and the form
of the Possessory interdicts, we may now examine the often mooted
question what is the relation of Possession to the classification of
Eights as Keal or Personal : to which division of actions, Real or
Personal, is procedure by the Possessory interdicts to be assimilated ?
The answer to this must begin by distinguishing mere Possession
or Interdict- possession, from Possession associated with Titulus,
Bona fides, absence of furtum, that is from Usucapion-possession.
The latter is incipient property, and is recoverable by actio in rem
Publiciana, 2 § 4 1 ; that is, it is treated in respect of its remedy as
if it were perfect property in respect of all persons except the owner :
Usucapion-possession, then, though it is always liable to be defeated
by the owner making good his superior claim (except in the case
of the possessor having a bonitary title), may be regarded as a Real
right and is recoverable from third parties by a Keal action.
All interdict procedure belongs to the class of Personal actions
618 DE ACTIONIBVS [iv. §§ 138-170.
for the enforcement of obligations, Modestinus, Dig. 44, 7, 52, 6.
Jure honorario obligamur ex his, quae edicto perpetuo vel magistratu
fieri praecipiuntur vel fieri prohibentur. Interdicta omnia, licet in
rem videantur concepta, vi tamen ipsa personalia sunt, Ulpian, Dig.
43, 1, 3. 'All interdicts, though impersonal (Real) in terms, are in
substance Personal actions.'
The party against whom judgment was given in interdict procedure
was, it would seem, technically guilty of having disobeyed the mandate
contained in the interdict of the magistrate. Interdict procedure,
which was carried on by means of a sponsio poenalis, has in some re-
spects more similarity to a delictal than to a strictly civil action. That
some interdicts in particular (interdictum fraudatorium, interdictum
de vi, and Unde vi) were classed with actions ex delicto, appears from
the fact that they were only maintainable against the wrong-doer
within a year from their nativity, though originally this was other-
wise in the case of the interdictum de vi armata, Cic. ad Fam. 15, 16 ;
and were only maintainable against the heir of the wrong-doer so far
as he was enriched by the wrong of his predecessor (quatenus ad eum
pervenit . . . ut tamen lucrum ei extorqueatur, Dig. 44, 7, 35, pr.),
features which the interdicts have in common with other unilaterally
penal actions. Moreover, the interdicta retinendae possessionis appear
to have been based, as we have seen, on an act of feigned violence (vis
ex conventu), that is on an act of a delictal kind.
The right of a person who has been dispossessed to be reinstated
in possession is a secondary right based on the violation of some
primary right. What was the nature of that primary right ? Ac-
cording to Savigny it was the right of a freeman to be exempt from
violence or corporeal molestation ; not the right of a mere possessor
to continue in possession till the owner has vindicated his right.
He denies, that is, that the mere fact of Possession can give a title
investing the possessor who, it is to be remembered, may even be
a thief or other mala fide possessor, with a right to continue in pos-
session ; and bases the right of reinstatement on another right, one
of the rights that we have called Primordial, the right to immunity
from corporeal violence. But the more prevalent view now is
that the object of the possessory interdicts, whatever may be their
formal character, is to afford fuller protection to ownership, as it is
the owner who is, as a rule, in possession and if he is disturbed in
it he finds proof of his possession, which is all that the interdicts
require — a much easier task than proof of ownership, which is pro-
verbially difficult. This advantage, however, cannot be given him,
unless it is also extended to the possessor who is not owner, and even
to the mala fide possessor, since otherwise the question of proof of
title would not be avoided.
iv. §§ 138-170.] POSSESSION 619
According to this theory then possession is to be regarded as
conferring a right against the person interfering with it ancillary
to that of ownership. Cf. Ihering, Ueber den Grund des Besitzes-
schutzes ; Sohm, § 67.
The classical jurists seem not to have considered the question. The
delict adjudicated upon in interdict procedure is in form the violation
of a public duty, the duty of obedience to the magistrate. That it was
in substance the violation of a private or civil right of a person who
has been dispossessed did not appear on the face of the proceedings ;
and consequently the nature of this right had not to be investigated.
Possession, which involves a right against the world to freedom
from molestation till a better right is shown, came to be regarded
by the Eoman jurists and in subsequent legal history as de facto
ownership standing alongside and in close relationship to legal owner-
ship. So the contrast between the possessory interdicts and vindi-
catio reminds Englishmen of the old division of actions in English
law into Possessory and Droitural, which our mediaeval lawyers
adopted from the Civil and Canon Law. According to this view the
Interdicts Uti Possidetis and Utrubi were, at least at the time when
Gaius wrote, not delictal, except in form, but possessory in character,
the infringement of the rights they protected wanting the ordinary
requisites of a delict. But though the possessory interdicts seem to
have for their object simply the protection of possession, as the object
of vindicatio is simply the protection of ownership, they are actions
in personam not in rem, that is they only lie against the party who im-
mediately interferes with the possession of another, not against third
parties.
The primary right on which they are founded cannot be better
stated than in the words — ' possessor hoc ipso, quod possessor est, plus
juris habet, quam ille, qui non possidet.' The law assumes that the
possessor is owner till the contrary is proved in an appropriate action.
Cf. Bruns, Die Besitzklagen des romischen und heutigen Eechts.
That in a given system of positive law what is in substance an
action for the protection of property may assume the form of an
action on Delict, we may convince ourselves by remembering some
of the anomalies of the scheme of actions in English law. Trover
and Detinue, which were brought to recover movable property, were
kinds of Trespass, that is of action on delict : Assumpsit, the remedy
for enforcing a simple contract, was externally a species of Trespass
on the Case, another action on delict : and Ejectment, practically the
sole real action for the recovery of land, was theoretically another
species of Trespass.
The Interdict, as originating action, bears some resemblance to
a now abolished institution of English law, the Original writ. But
620 DE ACTIONIBVS [iv.§§ 171-187.
the Original writ was a mandate addressed by the head of adminis-
tration or judicature to the sheriff ; that is, to an executive officer,
not, as the interdict, to the individual suitor. Besides, this mandate
of the crown required the sheriff to command a defendant to obey
the crown by obeying the precepts of the legislator : the peculiarity
of the interdict, as appears from the preceding account of its character,
was that it formed of itself the whole of the law which the suitor
was commanded to obey. The possessory interdicts, for instance,
simple and meagre as they outwardly seemed, really comprised
the whole law that governed the protection of mere Possession.
And the same is true of all the other interdicts which have been
enumerated, so that the interdicts had the effect of giving protection
to rights outside the ordinary law, through the direct interposition
of the magistrate. This, as already observed, is apparently the true
interpretation of the terms in which Gaius expresses the distinctive
feature of Interdicts : certis ex causis Praetor aut Proconsul PEINCI-
PALITER auctoritatem suam finiendis controversiis interponit, § 1 39 :
i. e. in issuing an interdict the magistrate exercised a principalis
auctoritas, wielded a sovereign authority.
But though originally the subjects of the Interdict had been
omitted by the ordinary law, as matters rather of administration
than of legislation ; yet after many individual Interdicts had been
issued, and their conditions had been generalized by the authorities
of jurisprudence ; after, moreover, the rules which would be observed
in their issue had been announced by the magistrate in his annual
proclamation ; the area of questions decided by Interdict was
practically as much subject to law as any other department of
Eoman life. The code of rules promulgated by the magistrate (jus
praetorium), being accepted by the state, was just as much law as
if it had been enacted by the legislative assemblies : so that finally
Interdict procedure differed from ordinary litigation merely by
a fringe of form, that served as a memento of its historic origin, the
extraordinary power of the magistrate in republican Rome: this
fringe of form disappeared with the formulary process, the procedure
in the domain once managed by Interdict being assimilated to the
procedure employed in all the other departments of the code ; thus
Justinian finds it unnecessary to speak in his Institutes of the old
forms of Interdict procedure. Inst. 4, 15, 8.
. lryi itf 7 \ • • § 171. We have now to notice
§ 171. — -Modp j pecumana tha>tin order to nt vexatious
poena modo lurlsmrand^ re- litigatioil) both piaintiffs and de-
— ; eaque praetor fendants are restrained sometimes
I — aduersus mfitmntes by pecuniary penalties, sometimes
ex ^quibusdam causis dupK by the sanction of an oath which
actio constituitur, ueluti si iu- they are compelled to take, some-
iv. §§ 171-187.] DE POENA TEMERE LITIGANTIVM 621
dicati aut depensi aut damni
iniuriae aut legatoruin per dam-
nationem relictorum nomine
agitur ; ex quibusdam causis
sponsionem facere permittitur,
ueluti de pecunia certa credita
et pecunia constituta ; sed
certae quidem creditae pecu-
niae tertiae partis, constitutae
uero pecuniae partis dimidiae.
Inst. 4, 16, pr.
§ 172. Quodsi neque spon-
sionis neque dupli actionis
periculum ei cum quo agitur
-iniungatur, ac ne statim qui-
dem ab initio pluris quam
simpli sit actio, permittit prae-
tor iusiurandum exigere NON
CALVMNIAE CAVS^l INFITIAS IRE.
unde quamuis heredes uel qui
heredum loco hajbentur,
obligati sint, item feminete pu-
pilli|que eximantur periculo
sponsionis, iubet tamen eos
iurare. Inst. 4, 16,1.
§ 173. Statim autem ab initio
pluris quam simpli actio est
ueluti furti manifest! quadrupli,
nee manifest! dupli, concepti
et oblati tripli. nam ex his
causis et aliis quibusdam, siue
quis neget siue fateatur, pluris
quam simpli est actio.
Inst. 1. c.
§ 174. Actoris quoque calum-
nia coercetur modo calumniae
times by fear of suffering infamy.
The defendant's denial of his obli-
gation is in certain cases punished
by the duplication of the damages
to be recovered. This occurs in
an action on a judgment debt, or
for money paid by a sponsor
(depensi), or for unlawful damage
to property (damni injuriae), or
for legacies left in the form per
damnationem. Sometimes a
wager of a penal sum is permitted,
as in an action of loan of money,
or on a promise to pay a pre-
existing money debt (pecunia
constituta), in the former case of
one third of the sum in dispute,
in the latter of one half.
§ 172. In the absence of the
risk of a penal wager, or of dupli-
cation of damages on account of
denial, and when the action is
not one which apart from any
denial entails more than simple
damages, the plaintiff is allowed
by the Praetor to exact an oath
from the defendant that his
denial is not vexatious. Accord-
ingly, although heirs and those
in the position of heirs are always
exempt from penalty, and women
and wards are exempted from the
risk of the penal wager, still the
Praetor requires them to take
the oath that they are not pro-
ceeding vexatiously.
§ 173. But apart from any
denial, more than simple damages
are involved in various actions :
as in an action of manifest theft
for a fourfold penalty, for theft
not manifest for a twofold one,
for stolen goods being discovered
or introduced (concepti et oblati)
a threefold penalty : for in these
and some other cases the action
is for something more than mere
damages, whether the plaintiff
denies or confesses the claim.
§ 174. Vexatious litigation (ca-
luninia) on the part of the plaintiff
622
DE ACTIONIBVS
[iv. §§ 171-187.
iudicio, modo contrario, modo
iureiurando, modo restipula-
tione. Inst. 1. c.
§ 175. Et quidem calumniae
iudiciura aduersus omnes ac-
tiones locum habet, et est deci-
mae partis, praeterquam quod
aduersus adsertorem tertiae
partis est.
§ 176. Liberum est autem ei
cum quo agitur, aut calumniae
iudicium opponere aut iusiur-
andum exigere, non calumniae
causa agere.
§177. Contrarium autem iu-
i . . . .
dicium ex certis causis consti-
tutor, ueluti si iniuriarum
agatur, et si cum muliere eo
nomine agatur, quod dicatur
uentris nomine in possessionem
missa dolo malo ad alium pos-
sessionem transtulisse, et si quis
eo nomine agat, quod dicat se
a praetore in possessionem
missum ab alio quo admissurn
non esse. sed aduersus iniuri-
arum quidem actionem decimae
partis datur, aduersus uero duas
istas quintae.
§ 178. Seuerior autem coer-
citio est per contrarium iudi-
cium. nam calumniae iudicio
decimae partis nemo damnatur
nisi qui intellegit non recte se
agere, sed uexandi aduersarii
gratia actioneminstituit,potius-
que ex iudicis errore uel ini-
quitate uictoriam sperat quam
ex causa ueritatis ; calumnia
enim in adfectu est, sicut furti
crimen. contrario uero iudicio
is also checked sometimes by the
judicium calumniae, sometimes
by the Contrary action, some-
times by oath, and sometimes by
restipulation.
§ 175. The action of reckless
litigation (calumnia) lies against
the plaintiff in respect of all
actions and is for the tenth part
of the value of what he has
claimed by action, but in the
case of an asserter of liberty it is
for a third part.
§ 176. But it is at the option
of the defendant whether he will
bring the judicium calumniae or
will exact an oath from the
plaintiff that he is not bringing
the action vexatiously.
§ 1 77. The Contrary action only
lies in certain cases, for instance,
against the plaintiff in an action
of outrage (injuriarum), and in an
action againstawidowwho having
been put into possession of pro-
perty on account of her conceived
but unborn child (ventris nomine)
has fraudulently transferred it to
some one else, or an action for
refusing to admit a person [judg-
ment creditor, damni infecti
nomine, etc. Digest 42, 4j put
into possession (missio in posses-
sionem) by order of the praetor.
In the action of outrage it lies
for the tenth of what has been
claimed, in the two latter actions
for the fifth.
§ 178. Of these deterrent mea-
sures the Contrary action is the
more severe. Plaintiff is con-
demned by the action of vexatious
litigation (judicium calumniae)
to forfeit the tenth of the value,
unless he knows he has no right
of action, and has sued to harass
his adversary, in reliance on the
error or iniquity of the judex,
rather than on the justice of his
cause ; since vexatious litigation,
like the crime of theft, consists in
iv. §§171-187.] DE POENA TEMERE LITIGANTIVM 623
omni modo damnatur actor,
si causam non tenuerit, licet
ali^a opinione inductus cre-
diderit se recte agere.
§ 179. Vtique autem ex qui-
bus causis contrario iudicio &gi
potest, etiam calumniae indi-
cium locum habet; sed alterutro
tantum iudicio agere permitti-
tur. qua ratione si iusiurandum
de caluinnia exactum fuerit,
quemadinodum calumniae iudi-
cium non datur, ita et contra-
rium dari non debet.
§180. Restipulationis quoque
poena ex certis causis fieri solet ;
et quemadmodum contrario iu-
dicio omni modo condemnatur
actor, si causam non tenuerit,
nee requiritur, an scierit non
recte se agere, ita etiam resti-
pulationis poena omni modo
damnatur actor, si uincere non
potuerit.
§ 181. Qui autem restipula-
tionis poenam patitur, ei neque
calumniae iudicium opponitur
neque iurisiurandi religio in-
iungitur; nam contrarium iu-
dicium ex his causis locum non
habere palam est.
§ 182. Quibusdam iudiciis
damnati ignominiosi fiunt, ue-
luti furti, ui bonorum raptorum,
iniuriarum ; item pro socio,
fiduciae, tutelae, mandati, de-
positi. sed furti aut ui (bo-
norum} raptorum aut iniuri-
arum non solum damnati no-
tantur ignominia, sed etiam
pacti, ut in edicto praetoris
scriptum est ; et recte : pluri-
mum enim interest, utrum ex
intention. But in the Contrary
action the plaintiff is condemned
in ,any case if he loses the pre-
vious action, even though he had
some grounds for believing in the
goodness of his cause.
§ 179. But it is clear that
wherever the contrary action (con-
trarium judicium) lies, the action
for vexatious litigation (calumniae
judicium) also lies, though one is
only allowed to make use of one
or other of these actions ; on this
principle if an oath that the liti-
gation is not vexatious has been
exacted, just as the calumniae
judicium is not granted, so also
the contrarium judicium ought
not to be allowed.
§ 180. The penalty of the resti-
pulatio also is commonly required
in certain cases ; and just as in
the contrary action the plaintiff
is condemned under all circum-
stances where he loses his cause
whether he knew that he had no
proper cause of action or did not,
even so he forfeits the penalty of
the restipulatio in any case if he
could not succeed in the action.
§ 181. But when a person
suffers the penalty of the resti-
pulation, neither the action for
vexatious litigation can be brought
against him, nor can he be bound
by the religious form of oath ;
and that in this case the contrary
action has no place is obvious.
§ 182. In some actions con-
demnation involves infamy, as
in the actions of theft, rapine (vi
bonorum raptorum), outrage (in-
juriarum), partnership, fiduciary
agreement (fiduciae), guardianship
(tutelae), mandate, deposit. In
actions far theft, rapine, and out-
rage, it is not only infamous to
be condemned, but also to com-
promise, according to the terms
of the praetor's edict ; and rightly
so since obligation based on delict
624
DE ACTIONIBVS
[iv. §§171-187.
delicto aliquis an ex contractu
debitor sit. nee tamen ulla
parte edicti id ipsum nominatim
exprimitur, ut aliquis ignomi-
niosus s^t ; Bed qui prohibetur
et pro alio postulare et cogni-
torem dare procuratoremue
habere,item (^>ro)curatorioaut
cogniforio nomine iudicio inter-
uenire, ignominiosus esse dici-
tur. Inst. 4, 16, 2.
§ 183. In summa sciendum
est eum qui cum aliquo con-
sistere uelit {m ius uocare)
oportere et eum qui uocatus est,
si non uenerit, poenam ex edicto
praetoris committere. quasdam
tamen personas sine permissu
praetoris in ius uocare non
licet, ueluti parentes patronos
patronas, item liberos et par-
entes patroni patronaeue ; et
in eum qui aduersus ea egerit
poena constituitur.
Inst. 4, 16, 3.
§ 184. Cum autem in ius
uocatus fueritaduersarius neque
eo die finiri potuerit negotium,
uadimonium ei faciendum est,
id est ut promittat se certo die
sisti.
§ 185. Fiunt autem uadi-
monia quibusdam ex causis
pura, id est sine satisdatione,
quibusdam cum satisdatione,
quibusdam iureiurando, quibus-
dam recuperatoribus suppositis,
id est ut qui non steterit, is pro-
tinus a recuperatoribus in sum-
mam uadimonii condemnetur;
eaque singula diligenter prae-
toris edicto significantur.
§ 186. Et siquidem iudicati
depensiue agetur, tanti fit ua-
dimonium, quanti ea res erit ;
si uero ex ceteris causis, quanti
differs widely from an obligation
based on contract. But although
there is no express statement that
a person is to be infamous in any
part of the edict, a person is said
to be infamous who is prohibited
from appearing in a court of law
on behalf of another, from appoint-
ing a cognitor or procurator, and
from himself serving as cognitor
or procurator.
§ 183. Finally, it is to be
noticed that a party intending to
sue must serve a summons on his
opponent to appear before the
magistrate ; and if the summons
is disregarded, the party sum-
moned forfeits a penal sum ac-
cording to the provisions of the
praetor's edict. Some persons,
however, cannot be summoned
without the praetor's leave, such
as parents, patrons, patronesses,
and the children of a patron or
patroness ; and any one infring-
ing this rule is liable to a penalty.
§ 184. Upon an appearance be-
fore the magistrate, if the pro-
ceedings are not terminated on
the same day, the defendant must
give security (vadimonium) for
an adjourned appearance on a
future day.
§ 185. The security is in some
cases of a simple kind that is
without sureties, in some with
sureties, in some cases again it is
accompanied by oath, while in
some contains a reference to
recuperators, so that on default
of appearance the defendant may
be immediately condemned by
the recuperators in the penal sum
of the security ; all which matters
are more particularly explained
in the praetor's edict.
§ 186. In an action on a judg-
ment debt (judicati), or for money
paid by a sponsor (depensi), the
sum of the security is equal to
iv. §§ 171-187.] DE POENA TEMERE LITIGANTIVM 625
actor iurauerit non calumniae the sum in question. In other
causa postulare sibi uadimo- cases it is the amount which the
nium promitti. nee tamen plaintiff swears that he is not
(pluris quam partis dimidiae, vexatiously demanding as neces-
nec} pluribus quam sestertium sary to his security, provided that
C M fit uadimonium. itaque si i<; is. not more than half the sum
centum miliurn res erit, nee ^ dispute, nor exceeds a hundred
iudicati depensiue agetur, non thousand sesterces. If, for in-
plus quam sestertium quinqua- f*™6' ^ ^ f ?P * A
1 .,. ~, . ^ hundred thousand sesterces, and
gmta milmm fit uadimomum. the acti(?n ig not brought t'Q re.
cover a judgment debt or money
paid by a sponsor, the penal sum
of the security conditioned for
reappearance may not exceed
fifty thousand sesterces.
§ 187. Quas autem personas § 187. Those persons who can-
sine permissu praetoris inpune not be summoned to appear with-
in ius uocare non possumus, out leave of the praetor cannot
easdem nee uadimonio inuitfas be compelled to give security for
obligare possumus praeterquam the adjourned appearance with-
si praetor aditus permittat. out similar permission.
§ 171. From the duplication of damages against a defendant who
denied his delinquency under the lex Aquilia, 3 § 216, and against
a heres charged with a legacy in the form of condemnation, § 9 ; and
from the terms, dare damnas esto = dare judicatus esto, employed
both in the lex Aquilia, 3 § 210, comm., and in bequest per danina-
tionem, 2 § 201, it may be inferred with much probability that
both the author of unlawful damage and the heir charged with a
legacy by words of condemnation were subject, in the older period of
the law, to the same proceedings as the judgment debtor (judicatus) ;
that is, in early times were suable by Manus injectio, § 25, and in
later times were bound to give satisdatio judicatum solvi, § 102.
Cf. Roby, 2. p. 292, and the writers there cited.
Double damages, as a penalty of misrepresentation, were perhaps
also an incident of Nexum. Cum ex XII Tabulis satis esset ea prae-
stari quae essent lingua nuncupata, quae qui infitiatus esset dupli
poenam subiret, a jureconsultis etiam reticentiae poena est constituta,
Cic. de Off. 3, 65. 'While the Twelve Tables were satisfied
with requiring compensation for faults against which a manci-
pator had expressly warranted, and with punishing a false war-
ranty by double damages, the jurists imposed a similar penalty on
reticence.'
In Condictio and Constitutum the sponsio was optional (permit-
titur), § 171 ; cf. § 13: in Interdicts it was compulsory, § 141.
Bethmann-HoUweg, § 96 ; Lenel, § 95, 2k
WHITTUCK S S
6.26 DE ACTIONIBVS [iv. §§ 171-187.
§ 175. A charge of calumny implies guilty knowledge or un-
lawful intention (dolus), the Contrary action implies unlawful
ignorance, that is, recklessness or want of consideration (culpa,
temeritas).
§ 176. In three personal actions each party was considered as both
plaintiff and defendant and had to take both the oath of the plaintiff
and the oath of the defendant. Qui familiae erciscundae et communi
dividundo et finium regundorum agunt, et actores sunt et rei et ideo
jurare debent non calumniae causa litem intendere et non calumniae
causa ad infitias ire, Dig. 10, 2, 44, 4. 'In partition of inheritance,
dissolution of joint ownership, and determination of boundaries, both
parties are equally plaintiff and defendant, and therefore must swear
to the good faith of both the suit and the defence.'
In the time of Justinian the action of calumny, the Contrary action,
sponsio and restipulation had become obsolete, and in their place the
losing party was condemned in costs, and the oath received develop-
ment, being always administered to both parties and their advocates,
Inst. 4, 16, 1. 'Instead of the old checks the oath of the parties and
their counsel has been introduced, and the condemnation of the
unsuccessful litigant in the costs of his adversary,' Cod. 2, 58.
Payment of costs by the loser of the cause was introduced by a law
of Zeno, A. D. 486.
§ 184. Vadimonium must be distinguished from the security
judicatum solvi. It only referred to reappearance of the defendant
in jure, not to appearance before the judex, like the later cautio
judicio sisti, and was required whenever there was an adjourn-
ment, whereas security judicatum solvi secured satisfaction of
the judgment and was only required from the defendant in real
actions and in certain exceptional personal actions, § 102. Cf.
Keller, § 47.
In procedure by cognitio extraordinaria, the in jus vocatio,
summons of the defendant by the plaintiff, was superseded by
summons of the defendant by the magistrate through his lictor
(evocari a praetore). Obedience to this summons was compelled by
a fine of which we have the formula in Gellius, 11, 1. 'As
M. Terentius on citation has neither answered nor been excused,
I fine him in a single sheep.' If the defendant continued con-
tumacious he was summoned to appear by three proclamations
(edicta) at intervals of ten days, and finally an edictum peremptorium
was issued in which the magistrate threatened to hear and decide
the case in his absence, in default of his appearance, which was done,
if he continued disobedient, Dig. 5, 1, 68, &c.
Procedure before a judex was properly called actio, before the
praetor, persecutio, Dig. 50, 16, 178, 2. 'Persecutio is the proper
iv. §§ 171-187.] DE POENA TEMERE LITIGANTIVM 627
name for extraordinary procedure, as in trusts and other claims
which are not triable by an ordinary judex.'
The Libellary procedure which existed in the time of Justinian,
having superseded the Formulary procedure, was essentially the
same as cognitio extraordinaria. Instead of the summons before
the praetor (in jus vocatio) and notice of the action which the
plaintiff meant to bring (editio actionis) with which the Formulary
procedure commenced, Libellary procedure began with libellus con-
ventionis (at an earlier time with what is called litis denuntiatio,
instituted by Marcus Aurelius) and writ of summons. The libellus
con ventionis was a writing addressed to the court, signed by the
plaintiff, stating his cause of action, and binding himself to proceed
to Litis Contestatio within two months at latest, or pay twice the
costs up to thirty-six aurei, to prosecute the suit to judgment, and
pay the costs in the event of losing the cause : it was a form of suing
out a writ or summons. Thereupon followed an interlocutor of the
court, on its finding a valid cause of action disclosed in the libellus,
and this formal document something like an English writ was
addressed to the defendant and served on him, not by the plaintiff
but by an officer of the court (executor) along with the libellus. The
defendant then paid a fee (sportula) to executor proportioned to the
amount of the claim ; delivered his answer or counter-declaration
(libellus contradictionis, responsionis) signed by himself and acknow-
ledging the date of the reception of the libellus; and either gave
cautio judicio sisti, security for his appearance in the action for the
definitive appointment of the trial (judicio ordinando) and for his
continuance to the close of the trial (cautio de re defendenda), or was
liable to incarceration. As we have already seen, the action was no
longer tried by a judex privatus but by an imperial official. Cf.
Muirhead, § 77 ; Sohm, pp. 315, 316.
Gaius has given us no information concerning Appeal, and very
little information has come down to us from other sources as to the
origin and development of this kind of jurisdiction under the
Principate. (See on this subject Historical Introduction.) Under
the republic we hear of no right of Appeal in civil suits : it appears
however with the principate, and indeed with the first princeps : and
may have been derived from the tribunicia potestas. The jurisdic-
tion may have been only exercised at first in respect of cases belonging
to the cognitio extraordinaria of the magistrate, and so not for some
time have been applicable to the decisions of private judices. By
its extension to these the judex lost the independent position which
he held in the time of the republic and was brought under the control
of the supreme executive power. The following series of Appeals in
civil suits seems to have been instituted : From the Judex to the
882
628 DE ACTIONIBVS [TV. §§ 171-187.
Praetor who appointed him : from the Praetor to the Praefectus urbi :
from the Praefectus urbi to Caesar. In the provinces a Vir consularis,
appointed for the purpose, took the place of Praefectus urbi, Suetonius,
Augustus, 33.
For the constitution of the courts in the periods of Legis actio,
Formula, Libellus, the student should consult Bethmann-Hollweg's
Komischer Civilprozess.
APPENDIX
ADDITIONS AND AMENDMENTS
[The words embodied in the text are distinguished from the conjectural
readings by italics. ]
SOME conjectural readings, principally by Krueger and Studemund
and by Huschke, too uncertain for admission into the text, but
followed more or less closely in the translation, are here appended.
1 § 43. Neque plures quam D servos habentis nientio in ea lege
laabetur.
1 § 56. Itaque liberos suos in potestate habent cives Eomani, si,
&c., &c.
1 § 73. Cujus afitatis filius sit, nisi forte eorum aliquis, qui e lege
Aelia Sentia matrimonium se contrahere putarint, erroris causam
probare velit ; ab hoc enim, &c., &c. . . . quod ad erroris quoque causam pro-
bandam attinet, anniculus filius esse debeat, sed non semper videri
debet generale jus inductum cum imperator epistulam ad quendam
dedit.
1 § 78. Quod autem diximus inter civem Romanam peregrinumque
contracto matrimonio eum qui nascitur peregrinum esse, lege Minicia
cavetur, qua lege effectum est, ut si matrimonium inter cives
Komanas peregrinosque non interveniente conubio contrahatur eum
qui nascitur peregrini parentis condicionem sequatur.
1 § 79. Adeo autem hoc ita est, ut ex cive Eomano et Latina qui
nascitur Latinus nascatur, quamquam ad eos, qui hodie Latini
nominantur, lex Minicia non pertinet ; nam comprehenduntur
quidem peregrinorum appellatione in ea lege non, &c., &c.
1 § 1 1 5 6. Si tamen mulier fiduciae causa, &c., &c. . . .
1 § 118. nam feminae a coemptionatoribus eodem modo possunt
mancipari quo liberi a parente mancipantur ; adeo quidem, ut
quamvis ea sola apud coemptionatorem filiae loco sit, quae ei nupta sit,
tamen nihilo minus, &c.
1 § 122. Namque veluti asses librales erant, et dupundii bilibres, &e.,
&c. ; . . . quamobrem qui ddbat olim, &c., &c.
1 § 132. At the end, cf. Epit. 1, 6, 3. Tamen cum tertio manci-
patus fuerit filius a patre naturali fiduciario patri, hoc agere debet
naturalis pater, ut ei a fiduciario patre remancipetur et a naturali
patre manumittatur, ut si filius ille mortuus fuerit, ei in hereditate
naturalis pater, non fiduciarius, succedat.
1 § 132 a. Ei, qui liberum caput e causa mancipii manumittit,
eadem jura in ejus bonis competere, quae patrono in bonis liberti com-
petunt ; for the remainder of the § cf. Epit. 1, 6 § 3 Feminae vel
nepotes masculi ex filio una emancipatione de patris vel avi exeunt
potestate et sui juris efficiuntur. Et hi ipsi quamlibet una manci-
patione de patris vel avi potestate exeant, nisi a patre fiduciario
remancipati fuerint et a naturali patre manumissi, succedere eis
naturalis pater non potest, nisi fiduciarius, a quo manumissi sunt ;
630 APPENDIX
nam si remancipatum eum sibi naturalis pater vel avus manumiserit,
ipse ei in hereditate succedit.'
1 § 134. Praeterea parentes, liberis in adoptionem datis, in pote-
state eos habere desinunt : et in filio quidem, si in adoptionem datur,
tres mancipationes et duae, &c.
1 § 135 a. Eadem scilicet dicemus de eo qui ex nepote semel
mancipato necdum manumisso conceptus fuerit. Nam ut supra, &c., &c.
1 § 136. Praeterea mulieres quae in manum conveniunt, in
patris potestate esse desinunt, sed in confarreatis nuptiis de flaminica
Diali senatusconsulto ex relatione Maximi, &c. And six lines
further; Coemptione autem facta mulieres omni modo potestate
parentis liberantur.
1 § 137. Sicut igitur filiae familias una mancipatione de potestate
patris exeunt, ita eae quae in manu sunt una mancipatione desinunt
in manu esse.
1 § 137 a. Inter earn vero quae cum extraneo, et earn quae cum
viro suo coemptionem fecerit, hoc interest, quod ilia quidem cogere
coemptionatorem potest, ut se remancipet, cui ipsa velit, haec autem
virum suum nihilo magis, &c., &c.
2 § 14. After rusticorum; cf. Epit. 2, 1, 3 ; Dig. 1, 8, 1, 1 ; Inst.
2, 2, 3. Praediorum urbanorum jura sunt velut jus altius tollendi
aedes, et officiendi luminibus vicini aedmm, aut non extollendi, ne
luminibus vicini officiatur, item fluminum et stilicidiorum jus, id est ut
vicinus flumen vel stillicidium in aream vel in aedes suas recipiat ;
item cloacae immittendae et luminum immittendorum. Praediorum
rusticorum jura sunt velut via, iter, actus, item pecoris ad aquam
adpulsus, item jus aquae ducendae. Haec jura tarn rusticorum quam
urbanorum praediorum servitutes vocantur.
2 § 1 4 a. Est etiam alia rerum divisio : nam aut mancipi sunt
aut nee mancipi. Mancipi sunt velut fundus in Italico solo, item aedes
in Italico solo item servi et ea animalia quae collo dorsove domari
solent, velut boves equi muli asini ; item servitutes praediorum
rusticorum. Nam servitutes praediorum urbanorum nee mancipi sunt.
(Cf. Dig. 1, 8, 1, 1. Inst. 2, 2, 3.)
2 § 15. sed quod diximus ea animalia quae domari solent, mancipi
esse, quomodo intellegendum sit, quaeritur, quia non statim ut nata
sunt, domantur. Et nostrae quidem scholae auctores statim ut nata
sunt, &c.
2 § 66. etiam si occupando ideo res adquisimrwws.
2 § 67. piscem ceperimus, quidquid ita captum fuerit, id statim
nostrum fit, et eo usque, &c., &c.
2 § 82. accipientis sine tutoris auctoritate . . . id est eos petere suos
ex jure Quiritium esse ; mulier vero minime hoc modo repetere potest,
sed ita : dari sibi oportere. Unde de pupillo quidem quaeritur, an si
nummi, quos mutuos dedit, ab eo qui accepit, consumpti sunt, aliqua
actione eos persequi possit, quoniam obligationem etiam sine tutoris
auctoritate adquirere sibi potest.
2 § 111. quos lex Papia plus quam dimidias partes hereditatis
legatorumque capere vetat, ex militis testamento solidum capiunt.
Cf. Inst. 2, 12. Ulp. 20, 10. Epit. 2, 2, 1, &c., &c.
2 § 112. Sed ex auctoritate, &c., &c.
APPENDIX 631
2 § 129. After pronepotes ; nominatim exheredari jubet, feminini
vero inter ceteros ; qui nisi fuerint ita exheredati, promittit eis
contra tabulas bonorum possessionem.
2 § 149 a. After non sit', cum si agnati petant Jiereditatem excep-
tione doli mali ex cows&tutione imperatoris Antonini removeri possint.
2 § 150. Sane lege Julia scrip tis non aufertur hereditas, si
bonorum possessores ex edicto constituti sint; nam ita demum ea
lege bona caduca fiunt et ad populum deferri jubentur si defuncto nemo
heres vel bonorum possessor existat.
2 § 151 a. After hereditatem ; per exceptionem doli mali repelletur,
si vero nemo ab intestato bonorum possessionem petierit, fiscus
scripti heredi quasi indigno auferet hereditatem, ne ullo modo ad
eum quern testator heredem habere noluit perveniat hereditas.
2 § 235. At the end, multas similes species circumspicere possumus.
2 § 237. ideoque etsi secundum mentem testatoris is qui tutor
datur, poenae nomine, &c., or ideoque quando etiam poenae nomine
tutor datus fuerit, &c., &c.
3 § 43. itaque sive auctor ad testamentum faciendum factus erat, aut
sibi imputare debebat, quod heres ab ea relictua non erat, aut ipsum
ex testamento, si heres ab ea factus erat, sequebatur hereditas : . . . nee
enim ullus olim ab intestato heres vel bonorum possessor erat, qui
possit patronum a bonis libertae invitum repellere.
3 § 44. ergo ex bonis ejus quae centum milia sestertiorum plurisve
reliquerit patrimonium, si testamentum fecerit, dimidia pars de-
beatur, si vero intestata liberta decessit tota hereditas ad patronum
pertinet. But no suitable rendering has been suggested which agrees
with the words of the MS.
3 § 46. Olim quidem eo jure (utebantur), quod lege xir tabularum
patrono datum est, praetor autem non nisi virilis sexus patronorum
liberos vocat ; filia vero ut contra tabulas testamenti, &c.
3 § 69. patronus heredes instituerit, ex isdem partibus bona
Latini, si patri heredes existant, ad eos pertinere, &c., &c.
3 § 80. veluti si peregrinus sit bonorum emptor.
3 § 81. Item quae debita sunt ei cujus fuerunt bona, aut ipse, &c.
. . . debentur, et ideo de omnibus rebus utilibus actionibus et expe1
riuntur et conveniuntur, quas in sequenti, &c.
3 § 95. Si quis interroganti Dari Spondes ? respondeat Promitto
vel Dabo, an recte obligetur ; aut si quis interroganti Promittis ?
respondeat 'O/AoAoyw an recte obligetur.
3 § 95 a. Cf. Epit. 2, 9, 3. Sunt et aliae obligations quae nulla
praecedente interrogatione contrahi possunt.
3 § 103 a. Alia causa est, si ita stipulatus sim mihi aut Titio
Dari Spondes ? quo casu constat mihi solidum deberi et me solum ex
ea stipulatione agere posse, quamquam etiam Titio solvendo liberaris.
3 § 117. quia enim nobis ut post mortem nostram detur stipulando,
&c., &c.
4 § 1. Superest ut de actionibus loquamur. Et si quaeramus quot
genera, &c.
4 § 15. See Huschke's attempted reconstruction of what seems to
be an account of the actio sacramenti in personam.
4 § 17 a. A leaf of the MS. is missing.
632 APPENDIX
4 § 40. pars formulae quae ideo inseritur ut, &c., &c.
4 § 61. Inst. 4, 6, 30. In bonae fidei autem judiciis libera po-
testas permitti videtur judici ex bono et aequo aestimandi quantum
actori restitui debeat quo et illud continetur, &c.
4 § 66. Krueger and Studemund suggest the following — Itaque si
frumentum aut vinum petat bonorum emptor et invicem defrauda-
toris nomine pecuniam is debeat, quanto amplius ea pecunia id
frumentum aut vinum erit, in condemnatione ponitur ; si vero, &c., &c.
4 § 111. aliquando tamen et perpetuo eas dat, velut quibus imitatur,
&c., &c.
4 § 114. absolutoria ^esse. diversae scholae auctoribus de strictis
judiciis contra placuisse.
4 § 131. Et quae ante tempus obligationis in judicium deducuntur,
ea neque in condemnationem veniunt neque rursus de iis agere potest.
4 § 131 a. tradi, vel tradita, ea de evictione nobis caveri, iterum
ex empto agere possimus, alioquin si praescribere (obliti) sumus,
totius, &c.
4 § 133. per unius rei petitionem universae hereditati praejudi-
cium fieri.
4 § 134. et siquidem ex contractu servorum agatur, intentione
formulae determinatuw [Polenaar, designatum] est, cui dari oporteat.
4 § 165. nisi ei res exhileatur aut restituatur, quanti ea res erit,
adversarius ei condemnetur.
4 § 166. et qui superaverit fructus licitando, . . .
de eo inter se certant, utri fructuum perceptio interim committenda
est. Postea alter, &c.
Ad. Schmidt would read at the end — vel si unus tantum sponsione
provocavit alterum, una inter eos sponsio.
4 § 166 a. Deinde ab utroque editis formulis sponsionum et resti-
pulationum judex, &c., &c.
4 § 170. Itaque etsi alias potuerit interdicto Uti Possidetis vincere,
tamen si cetera ex interdicto facere noluerit, per interdictum secunda-
rium possessio in adversarium transfertur.
4 § 171. Nunc admonendi sumus ne facile homines ad liti-
gandum procedant, temeritatem tarn agentium quam eorum cum
quibus agitur coerceri modo pecuniaria poena modo jurisjurandi
religione modo metu infamiae.
4 § 172. simple tenus obligati sint.
INDEX
Figures in the thicker type indicate references to the text, in the lighter
to the commentary.
Abstinendi potestas, 209.
Acceptilatio.
form of, 389.
must be unconditional, 334.
extinguished verbal contracts, 390.
effect of, by women without sanction of
tutor, 390.
partial release by, 390, 394.
Aquiliana, 394.
Accessio.
meaning, 166.
examples of, 101-2, 166.
remedy for loss of ownership by, 162,
167.
Actio.
adjecticiae qualitatis, 519.
aestimatoria or quanti minoris, 370.
arbitraria : see formula arbitraria.
Calvisiana, 299.
communi dividundo, 481, 483.
confessoria, 448-9.
analogy of, to English real action,
449-
effect of defendant in not giving
security in, 531.
de peculio deque in rem verso, 517,
518, 520.
de eo quod certo loco, 505.
de tigno juncto, 166.
de vi bonorum raptorum.
when introduced, 416, 417.
formula, 416.
depensi, 353, 360, 454, 465.
security, 624.
directa, under lex Aquilia, 421, 424.
doli.
formula, 478.
tonaefidei, 511.
meaning, 489-90.
compared with actio strict! juris,
491-4.
as to plus petitio, 506.
as to compensatio, 511, 513.
as to exceptio in formula of, 578.
list of, 511.
exercitoria, 515.
who may sue or be sued by, 516.
Fdbiana, 299.
familiae herciscundae, 481, 483.
Jiclicia.
mode of operation of, 476: see also
actio utilis.
instances of, 471-3.
furti.
who can bring, 410-11, 413, 415.
manifest!, formula in, 412.
nee manifest!, formula in, 415.
Actio (continued},
honoraria.
emanated from imperium of praetor,
537-
Tiypotheearia, 327.
in factum.
explained", 489.
mode of operation, 478.
filius familias could bring, 496.
capable of plus petitio, 496, 505.
not extinctive bar to subsequent ac-
tion, 535,539:
see also actio utilis.
in factum praescriptis verbis, 329.
why so called, 329.
nature of, 329.
in personam, 442, 446 et seq.
when extinctive bar to subsequent
actions, 535, 539, 545.
injuriarum.
a remedy for outrage, 428.
formula of, 428.
in jus.
as to plus petitio, 496.
see formula in jus concepta.
in rent, 442, 446 et seq.
how commenced, 528, 532.
not extinctive bar to subsequent ac-
tion, 535, 539.
institoria, 515-16, 519-20.
judicati, 454, 464.
formula of, when judicium legitimum,
467.
superseded by pignoris capio, 467-8.
security, 624.
legitima, 537.
negativa, negatoria, 448-9.
analogous to English real action,
449.
effect of defendant in, not giving secu-
rity, 531.
noxalis, 521.
surrender of filius familias in, 522.
surrender of dead person in, 523,
523-4-
form of condemnatio in, 497.
changes in law as to, 524.
perpetua, 544, 545, 546 et seq.
pigneraticia, 327-
popularis, 527.
prohibitifurti, 406.
Publiciana, 153, 479.
who may sue by, 153.
an actio ficticia, 472.1
contrarla, rescissoria, discussed, 479.
quanti minoris, 370.
quasi institoria, 386.
634
INDEX
Actio (continued},
quasi Serviana, 327.
formula, 478.
quodjussu, 515, 520.
quod metus causa.
nature of, and formula, 57^-7-
when introduced, 417.
redhibitoria, 370.
rei uxoriae, 572.
Rutiliana.
an actio ficticia, 472, 478.
Serviana.
actio ficticia, 472.
stricti juris.
probably older than actio bonae fidei,
490.
compared with actio bonae fidei,
491-4.
suspecti tutoris, 106.
temporalis, 544-5, 546 et seq.
trlbuloria, 516, 518, 520.
utilis.
mode of operation, ficticia and in
factum, 477-8.
under lex Aquilia, 421, 424.
varieties of, 424.
vectigalis, 373.
vi lonorum raptorum, 416.
formula in, 416.
Actions.
old forms of : see Legis Acti one s
forum of: see Forum,
rough classification of, 403.
ex contractu, nature of, 403-4.
ex delictoj nature of, 403.
real. 442, 446 et seq,
personal, 442, 446 et seq.
may be for restoration, or a penalty, or
both, 443, 452.
when right to bring, extinguished by
death, 452-3, 552-4.
by prescription, 433, 544-5 ; fully
discussed, 546 et seq.
by merger, 453.
by whom a person may bring or defend,
524-6, 527.
limit of time as to pendency of, 535-6,
538-9.
when barred by previous litigation,
535-6, 539 et seq.
transmission of, 545, 552-4.
what, could be satisfied between formula
and judgment, 554, 555.
discussion of pleadings, &c. in, 564 et seq.
appeals, 627.
and see Actio, judicium.
Aditio, hereditatis.
meaning, 205, 314.
effect of, 212, 215.
cannot be conditional, 334.
Adjudicatio.
a title of civil law, 157.
a part of formula, 480.
example of, 481.
Adjudicatio (continued).
never alone in formula, 481.
only found in three kinds of action,
481, 483.
Adolescens : see Minor.
Adopted children,
rights of while in potestate of adoptive
father, 193.
rights of when emancipated by adoptive
father, 193.
how affected by changes of Justinian,
202.
entitled to bonorum possessio intestati,
278.
Adoptio.
a mode of acquiring patria potestas,
62, 64.
two kinds, 62.
populi auctoritate, i.e. adrogatio (or
arrogatio), 62.
form of, 64.
of impubes, 63, 65.
of women, 63, 65.
change in effect of, by Justinian, 66.
mode of universal succession, 175, 312 ;
but see 313.
produced capitis minutio minima,
3I3-
effect on liability for debts, 312, 313,
473, 480.
summary of effect of, on rights and
obligations, 312.
imperio magistratus, 62.
form of, 82, 85.
effect on issue of adopted person, 82,
83.
change in effect of, by Justinian, 66.
gave adopted person civitas of adoptive
father, 297.
Adpromissor, 358.
Adrogatio : see Adoptio.
Adstipulator.
origin of, 344, 347.
payment to, discharges debtor, 347.
words used by, in stipulatio, 347-8.
may not stipulate for more than stipu-
lator, 348.
heres of, cannot sue, 348.
persons who cannot be, 348.
is employed to secure payment after
stipulator's death, 349.
bound to hand over what he recovers,
347.
effect of capitis deminutio of, 348, 358.
remedy against, who defrauds prin-
cipal, 419.
chief function of, 358.
gradually died out, 358.
Adversaria, 362.
Aediles curules.
jus edicendi of, 2, 7.
Aerarium.
meaning, 119.
when caduca passed to, 226.
INDEX
635
Affinity or adfinitas, 49.
Agency.
acquisition of dominion by, 173-4.
obligationes ex contractu by, 175 ; more
fully, 344-7, 385-6, 515-18.
in litigation, of adstipulator, 349, 358.
of cognitor or procurator, 383, 524-6,
of tutor or curator, 524.
contractual, 385-6.
germ of, in relation of magister navis,
5i9-
Ager emphyteuticus, emphyteutica-
rius.
meaning of, 373.
ager vectigalis assimilated to, 373.
held under special kind of contract,
373-
Ager privatus, 152.
Ager publicus, 152.
Ager vectigalis.
meaning of, 373.
assimilated to ager emphyteuticus, 373.
whether held under contract of sale or
hiring, 371, 373.
Agnate : see Agnati.
Agnati.
definition of, 92, 92, 271, 273.
guardianship of, 91.
nearest grade only entitled, 94.
effect of capitis deminutio on rights of,
92, 94.
alienation of lunatic's property by,
163.
right of, to intestate succession, 271-3.
nearest grade only entitled, 271-2,
274.
date for determining nearest grade,
272, 275.
what females are entitled to succession
as agnatae, 272, 275.
grant of bonorum possessio to, 277,
282.
can convey hereditas in intestacy by in,
jure cessio, 313.
effect of surrender of hereditas by, 314.
Agnitio bonorum possessionis.
how made, and within what time, 205,
216, 217, 283.
Alaric II.
Code of, 26.
Album,
juclicum, 26.
of praetor, 7.
Alien : see Peregrinus.
Alienation,
non-proprietors who have power of,
163.
proprietors who have not power of, 163.
by pupillus, 169.
by a woman, 169.
to pupillus, 169.
to a woman, 169.
of an inheritance, 313-14, 314-15.
of res litigiosa, 579.
Allectio, 297.
Alluvio, 160.
Annas utilis, 217.
Antestatus, 83.
Antoninus Caracalla.
grant of civitas Romana, 6l.
as to caduca, 226.
Antoninus (Marcus Aurelius) : see
Marcus.
Antoninus Pius.
protection of slaves, 36, 38.
adrogation of impubes permitted, 63,
65-
quarta Antonini, 66.
as to contra-tabular possession of fe-
males passed over in will, 190.
as to juxta-tabular possession when will
was informal, 186, 188-.
effect of contra-tabular possession on
legacies to conjunctae personae, 199.
as to caduca, 226.
constitution as to passing of property
in legacy per vindicationem, 227.
Antoninus and Severus.
constitution as to burden of proof in
actio on cautio, 576.
Appeals.
series of, in civil suits, 627.
Aquae et ignis interdictio.
explained, 59.
destroyed patria potestas, 79.
caused cap. dem. media, 94.
Aquilian Stipulation, 394.
Aquilius Gallus.
as to after-born grandchildren, 196.
invented Aquilian Stipulation, 394.
formula relating to dolus malus, 394.
Arbitrium.
effect of, in formula, 496.
Arcadius and Theodosius.
abolished cretio, 215.
Arcaria nomina.
meaning, 365.
create real obligations, 361, 362.
Argentarius.
must recognize compensatio in formula,
511, 512, 515.
how compensatio is calculated against,
512.
Arrogatio : see Adoptio.
Assignatio, 382.
Atrox injuria, 427.
Augustus.
gave jus respondendi to certain jurists,
9-
increased panels of judices, 26.
changed legal effect of confarreatio, 69.
enforced fideicommissa, 252.
codicils acquired legal force, 263.
lex Julia Vicesima, 352, 360.
edicts as to alienation of res litigiosa,
578.
Austin, John,
law of persons and things, 14.
636
INDEX
Bailment, 374.
Bankrupt or Insolvent Debtor.
liability of, to personal execution, 303.
suffered loss of existimatio, 305, 308.
did not incur capitis deminutio, 305.
after-acquired property of, liable, 308-9.
Bankruptcy or Insolvency.
distinguished from ordinary execution,
3°2-3-
proceedings, 301-2, 306-7, 308.
effect of, upon status, 305, 308.
marshalling of creditors under, 310-11.
acts of, 307.
dissolves partnerships, 377-
Benencium.
cedendarum actionum, 357, 360.
competentiae, 483-4.
divisionis, 357, 360.
excussionis, or ordinis, 357, 360.
invcntarii, 216.
Blackstone.
public law, 1 6.
personal rights, 16.
Bona fide possessor.
rights of, to fructus, 164.
acquires dominium through freemen and
servi alieni, 172.
obligationes through freemen and servi
alieni, 387.
acquires dominium by usucapio, 147,
but see 148.
after litis contestatio, is liable for culpa,
401.
Bonitary owner.
cannot re-manumit Latinus, 30.
hereditas of re-manumitted Latinus
granted to, 31.
slave in potestate of, 37.
property acquired by slave belongs to,
171.
Bonitary ownership, 147, 152.
Bonorum cessio : see cessio bonorum.
Bonorum distractio, 309.
Bonorum emptor.
who is, 301-2.
acquires dominium by usucapio, 302.
fiction that, is procurator or heres,
472.
can only sue and be sued by actiones
ficticiae, 302, 472.
must notice any cross demand in his
formula, 511, 512.
Bonorum possessio.
origin of, 188.
nature oi', 277-9, 280-1.
re or sine re, 203, 205, 279, 280.
is an equitable succession, 281.
only actiones ficticiae lay in respect of,
281, 302, 472.
merely confers bonitary ownership, 302.
changed into dominium by usucapion,
302.
how claimed and within what time,
217.
Bonorum possessio (continued},
secundum tabulas.
when will is invalid ab initio, 186,
188.
when valid will becomes invalid, 202,
203, 204.
not defeated by claim of Fiscus under
lex Julia, 203, 205.
how, and within what time, to be
claimed, 205.
to persons entitled under a will valid
by jus civile, 279.
contra tabulas.
not always equivalent to intestacy,
189, 198.
to female passed over, 191.
to male not disinherited nominatim,
191.
to emancipated children, 193, 198.
to pati'on passed over by freedman,
283.
instituted suus heres might sometimes
claim, 198.
intestati.
to emancipated children, 277, 280-1.
to some who were made cives with
their father, 276, 277.
to agnates who had suffered capitis
deminutio, 277.
to certain females, 277.
to cognates related through females,
278.
to children in adoptive family, 278.
to persons entitled by jus civile, 279.
summary of classes to whom, was suc-
cessively granted, 282.
how claimed and within what time,
283.
Bonorum possessor,
fiction that, is heres, 471-2.
and see Bonorum possessio.
Bonorum sectio, 309.
vests dominium in vendee, and transfers
juris universitas, 309.
Bonorum venditio.
a mode of universal succession, 175.
grounds for ordering, 301, 307.
how, was effected inter vivos, 301-2,
306-7.
how, was effected after death, 301-2.
only confers bonitary dominion, 302.
superseded by distractio bonorum,
309-
Breviarium Alaricianum, 26.
Buildings,
ownership in, 161.
servitudes in respect of : see Servitude,
urban.
Caducum, 225, 230.
Caelibes.
definition, 226.
incapable of taking under a will, except
that of a soldier, 181, 225-6.
INDEX
637
Caelibes (continued}.
incapable of taking by fideicommissa,
262.
incapacity abolished, 226.
Caligula.
increased judices, 26.
Capitis deminutio.
definition, 93.
effect on status, 92, 92, 94, 95.
maxima, 94.
minor, or media, 94.
minima, 94 ; discussion respecting, 98
et seq.
general effect of, 95.
some arbitrary consequences of, 101, 313.
of testator, effect of on the will, 201,
202, 205.
effect of, on a partnership, 377, 378.
effect of, of a debtor on the debts, 473-
4, 480.
Caracalla : see Antoninus Caracalla.
Cassias, n.
Causae conjectio, 456.
Cautio.
general name for security for a debt,
360.
de re defendenda, 627.
judicio sisti, 530, 534.
judicatum solvi : see stipulatio judi-
catum solvi.
effect of giving, when money not paid,
576.
Celsus, n.
Censor,
edict of, 7.
power of, 96.
Census.
manumission by, 21, 24.
evasion of, effect on status, 94.
Centum vir ale judicium.
excepted when legis actiones abolished,
470.
procedure in, 529.
Cessio actionum, 385.
Cessio bonorum, 301.
origin of, 308.
benefit conferred on debtors by, 308.
Children.
status of, when born of civil marriage,
53, 56.
of gentile marriage, 53, 56.
when illegitimate, 55, 57.
when status of mother changes before
birth, 57, 58, 59.
Chirographum,
a species of literal contract, 362, 365.
in time of Justinian, 365.
Citizenship.
Roman : see Civitas Romana.
in municipalities, how acquired, 296 ;
effect of, 297.
a person might have, in several states,
397-
Civil injury, 403.. >
Civis Bomanus.
ingenuus, 18.
libertinus, 18.
and see Civitas Romana.
Civitas Romana.
same as Jus Quiritium, 32.
how acquired by Latini, 28, 31-2.
how acquired by erroris causae probatio,
49.
by Imperial Rescript, 60, 61.
conferred on whole of Italy, 28, 77«
granted by Marcus Aurelius to all who
would pay for it, 61.
granted by Caracalla to all free subjects
of Empire, 61.
effect of cppitis deminutio and iafamia
on, 93-4, 95, 97.
effect of insolvency on, 305, 308.
Claudius.
building ships, &c., confers civitas Ro-
mana, 30.
protection of sick slaves, 38.
marries his niece, 45.
abolishes agnatic guardianship of women,
92.
alteration in law Terms and Vacations,
265.
Sc. Claudianum, 55, 56, 57.
Sc. Largianum, 290, 291, 292, 295.
Codex.
meaning, 264.
accepti et expensi, 362.
Alaricianus, 26.
Codicillus.
origin and nature of, 260, 263-4.
legacy left by, must be ratified by will,
260.
heres could not be directly instituted
or disinherited by, 260, 264.
no formality necessary, 264.
Coemptio.
a mode of creating manus, 67.
how transacted, 67, 68, 70.
matrimonii causa, 67.
fiduciae causa, 68, 71 et seq.
causes cap. dem. minima, 94.
distinguished from mancipatio, 76, 87.
operation of, as mode of universal suc-
cession, 312, 313.
effect of, on debts of the person in
manus, 312, 313, 473, 480.
Cognati -ao.
who are, 92, 282.
how different degrees of, calculated, 282.
capitis deminutio has no effect on rights
of, 92, but see 93.
change by Justinian as to right of, to
succeed in intestacy, 275-6.
related through females, grant of bo-
norum possessio to, 276, 278, 275-6.
limits of degree in which, are entitled
to succeed, 282.
Cognitio extraordinaria.
meaning, 537.
638
INDEX
Cognitio extraordinaria (continued).
in jus vocatio in, 626.
libellary Procedure essentially the same
as, 626.
Cognitor.
cannot be appointed 'conditionally, 334.
how appointed, 525.
why discontinued, 527.
not required to give security, 529, 330.
Co-heres.
share of, how allotted, 225.
effect of lapse on share of, 225.
degree of diligence required of, 430.
bound, inter se, quasi ex contract u,
386.
has actio familiae herciscundae, 387.
and see heres.
Co-legatee,
right of, in joint or several legacy per
vindicationem, 228, 236.
in joint or several legacy per damna-
tionem, 230, 236.
in legacy sinendi modo, 232, 236, 237.
in legacy per praeceptionem, 235.
lapsed share of, in legacy per vindica-
tionem, 228, 230, 231.
in legacy per damnationem, 230, 231.
with children, right of to caducum, 226,
230-1.
degree of diligence required of, 430.
Colonatus.
meaning, 375.
antitype of copyhold tenure, 375.
Colonia, 296.
Golonus.
two distinct meanings, 375.
Comitia.
calata, wills made in, 24, 176.
populi, enactments of, called leges,
1,5-
legislative power of, ceases after
Tiberius, 6.
curtate, elected king, 7-
adrogatio sanctioned by, 64-6.
Comity of nations, 509.
Commercium, 140.
an element of ci vitas Eomana, 27, 152.
a qualification for quiritary dominion,
152-
testamentifactio equivalent to, 183.
Commixtio.
a separable junction, 165.
produces no change of ownership, 165.
Commodatum.
a real contract, 324.
how made, 324-5.
rights and liabilities of parties to,
325-
must be gratuitous, 325.
theft of subject-matter of, 410.
degree of diligence required in, 429-30.
nudum pactum for interest could not be
annexed to, of money, 501.
compared with precariuin, 602—3.
Communio : see Co-ownership.
Compensatio.
in what actions, applies, 511, 513.
is in discretion of judex, 511.
when, noticed in formula, 511, 513.
in respect of what claims, applies, 512,
5!3-
compared with deductio, 512.
modes of claiming, in an action, 512.
Condemn atio.
part of the formula, 480.
example of, 481.
never found alone, 481.
how limited, 481, 483.
was always pecuniary, 487, 498.
may be for certain or uncertain sum,
488.
in formulae arbitrariae, 496.
effect of claiming too much or too little
in, 503-4.
Condictio.
a species of personal action, 443, 450.
a legis actio, 455.
when introduced, 458, 462.
why so called, 458.
in what cases, applied, 463.
modern, not based on ancient, 471.
furtiva, 415, 443, 450.
formula in, 450.
lies against heres of defendant, 553.
certi, 450, 451.
ex mera poenitentia, 330.
incerti, 451.
ob causam non secutam, 330.
triticaria, 451.
Condition.
nature of a, 342.
different effect of, in contract and will,
342. 344-
not annexable to all dispositions, 334,
343-
suspensive, 343-4.
resolutive, 343-4.
Conductor, 374.
Coufarreatio.
a mode of creating manus, 67.
how transacted, 67, 69.
changes in legal effect of, 83, 69.
Confiscation.
sometimes a consequence of capitis
deminutio maxima and media,
96.
dissolves partnership, 377, 378.
and see Sectio bouorura.
Confusio.
meaning, 165.
produces co-ownership, 166.
Conjunctae personae.
legacies to, 199.
Connubium.
meaning, 44, 48.
a condition of justae nuptiae, 44,
47-
persons who have, 48.
INDEX
639
Consensual contracts,
how made, 366.
are bilateral, 366.
different kinds of,
emptio et venditio, 367.
locatio et conductio, 371.
societas, 375.
mandatum, 378.
how dissolved, 395.
Consensus,
meaning, 319.
essential to a contract, 319.
Consilium.
to authorize manumissions, 21.
Constantino.
father guilty of parricide, 39.
introduces peculium quasi castrense, and
adventicium, 43.
abolishes penalties of childlessness and
celibacy, 226.
thirty years prescription, 546.
Constantino, Constantius, and Con-
stans.
formal words not necessary to institute
heres, 187.
formal words not necessary in giving
legacies, 235.
Constantius and Constans.
Constitution of, abolished all legal
formulae,
as to legacies, 236.
as to actions, 475-6.
Constitutio principis.
definition, 2.
explained, 6-7.
forms of, 2.
explanation of forma of, 6.
why, had force of law, 7.
Constitution,
explained, 365.
debit! alieni, an instance of solidary
intercessio, 358.
motive for introduction of, 360.
spousio in action on, 621, 625.
Constitution possessorium, 138.
Consul.
jus edicendi of, 7.
power of, under Emperors, 9.
Contract,
definition, 319.
essential of, 319-20.
divisions of, 315, 319-21, 328.
formal, meaning of, 320, 432 et seq.
what are, 319.
peculiar characteristics of, 333.
formless, meaning of, 319-20, 432 et
seq.
what are, 319, 328.
formal and formless, in English law,
.336.
bilateral, 321.
unilateral, 320-1.
by persons in potestate, 387.
in niauu, 387.
Contract (continued').
in mancipio, 387.
freemen possessed bona fide, 387.
servus alienus, 387.
servus held in usufruct, 387-8.
servus communis, 388, 389.
how discharged, solutio, 389.
substituted performance, 389, 394,
acceptilatio, verbal contracts, 389-90,
394-
novatio, 391, 395-6.
litis contestatio, 392-3.
in form by which made, 395.
damages for breach of, 422^3.
real, 323, 324.
innominate, 328.
verbal, 330, 333.
literal, 361.
consensual, 366.
to confer rights or obligations, 340.
on third parties, 340, 344-5.
by agents, 385-6, 515-8.
Conventio in manum, 67.
a mode of universal succession, 312,
313.
effect of, on debts of the person in manu,
312, 313.
obsolete in time of Justinian, 313.
Co-owners.
bound, inter se, quasi ex contractu,
386-7.
have actio communi dividundo, 387.
rights of, to obKgationes acquired by
slave, 388, 389.
degree of diligence required of, 430.
Co-ownership.
produced by confusio, 166.
how partition of, is enforced, 387.
Copyhold tenure.
antitype of, in Colonatus, 375.
Corporation : see Juristic person.
Correality.
meaning, 353.
how, may originate, 354.
point of agreement between, and
solidarity, 355.
chief differences between, and soli-
darity, 355.
Creditors.
manumission in fraud of, 33, 35, 36.
remedies of, against debtor and his
estate, 301-2, 303, 306-7, 308.
marshalling of, in bankruptcy, 310-11.
Cretio.
meaning, 210, 244.
vulgaris, 212.
certorum dierum, or continva, 212, 213.
imperfecta, 218, 221.
abolished by Arcadiua and Theodosius,
315.
Crime, 402.
Culpa.
opposed to dolus, 429.
lata, 429.
640
INDEX
Culpa (continued).
levis, 429.
in dbstracto, 429.
in concrete, 429.
levissima, 430.
Curator.
origin of, 115.
appointment of, 114.
when, must give security, 114.
generalis, 115.
different from procurator, 1 16.
distinct from tutor, 116.
of lunatic or prodigal, 116.
nature of obligation of, to minor, 386.
degree of diligence required of, 430.
actions by, on behalf of person in cura,
525 ; security in, 529.
Cumle aedile.
jus dicendi of, 2, 7.
edict of, as to sale, 370.
Custom.
a source of law, 13.
succession by adrogatio and conventio
in manum, governed by, 312.
Damages.
for breach of contract, 422-3.
under lei Aquilia, 418-19, 420, 421-2.
a means of preventing vexatious liti-
gation, 621.
Dam num.
under Lex Aquilia, 421, 424.
Damnum infectum.
action in respect of, excepted when
legis actiones were abolished, 470—1.
proceedings in case of, under praetor's
edict, 471, 476.
Dare.
meaning of, in formula, 447.
Datio, 317.
Decretum.
of Emperor, 2 ; explained, 6.
as opposed to interdictum, 582.
Dediticius.
one of the three classes of freedmen,
18.
who was a, 20.
status of a, 20.
has no testamentifactio, 22-3, 295.
can never become a civis Romanus,
20, 23, 50.
other disabilities of, 23.
status of descendants of a, 27.
devolution of property of a, at his
death, 294-5.
formally abolished by Justinian, 34.
Deductio.
in action by bonorum emptor, 511.
different from compensatio, 512.
how claimed, 512.
Defensor.
meaning, 527.
security given by, 534.
Delatio. 205.
Delegatio.
a species of mandatum, 381.
relation between the parties to,
381.
Delict.
meaning, 402.
public and private, 402.
obligations arising out of, 315, 402.
Demoustratio.
a part of the formula, 480, 482.
never found alone, 481.
when inserted, 482.
effect of claiming too much or too little
in, 504, 510.
Denarius.
change in value of, 533.
Denization. 62.
Deportatio in Insulam.
origin of, 59.
effect of on status, 59, 94.
Depositum.
a real contract, 324.
how entered into, 325.
must be gratuitous, 325.
miser abile, 325.
irregulare, 325.
theft of subject-matter of, 411.
degree of diligence required respecting,
43°.
Detention.
as opposed to possession, 610.
nature of, 615.
De vi bonorum raptorum, actio, 416.
Dies.
comiliales, 264.
continui, 316.
fasti, 264,
festi, 264.
intercisi, 264.
judiciarii or juridici , 217, 264.
profesti, 264.
utiles, 216.
Dies cedit. cedens.
as to inheritances, 225.
legacies, 225, 245.
obligations, 245.
Dies interpellat. pro nomine, 266.
Dies venit, veniens.
as to legacies, 245.
obligations, 245.
Diligentia.
exacta, 429.
quam suis rebus adhibere solet, 429.
Diocletian and "M~n.TriTmii.Ti.
constitution, exchange or barter is a
contract, 370.
all judicia made extraordinaria, 475*
time, for pleading exceptio pecuniae
non numeratae, extended, 576.
sale, &c., of children unlawful, 40.
Disposition.
unilateral, 9.
bilateral, 9.
INDEX
641
Disposition (continued").
contrasted with wrongful act, 9-1 1 .
when affected by intention, 17.
formal, 432 et seq.
formless, 356.
abstract, 433 et seq.
simulative, 438 et seq.
Divestitive facts, 3.
Divorce.
how effected, 86, 87.
might give husband right to retain
part of dos, 533.
Divortium : see Divorce.
Dolus.
opposed to culpa, 429.
gave rise to exceptio doli mali, 577-
actio doli, 577.
was a ground for restitutio in inte-
grum, 577.
Domicilium.
definition, 297.
ori (finis, 298.
effect of, on rights and liabilities, 298.
forum of, 506.
law of, when applicable, 507-8.
Dominium or Ownership,
place of, in the system of Gaius,
124-5.
of the state, its nature, 127.
quiritary, ex jure Quiritium, 146,
151 et seq.
who may have, 152.
to what objects, relates, 152.
bonitary, in bonis, 147, 152.
of peregrinus, 146, 152.
in provincial land, 122, 152.
how acquired by jus naturale, 159 et
seq., 164 et seq.
how acquired by jus civile, 132-4,
135-6, 146 et seq., 153 et seq.
abandonment of, 165.
differs from possessio as to abandon-
ment, 165.
persons through whom, may be ac-
quired,
children in potestate, 170.
slaves, 170.
slave in bonis, 171.
persons in mancipio, 171.
maim, 171.
acquired through slaves held in usu-
fruct, 171.
slaves bona fide possessed, 172.
freemen bona fide possessed, 172.
originally not acquired by means of
eztranea persona, 173 ; but see 1 74.
bonorum possessor acquires, by usu-
capio, 302.
bonorum emptor acquires, by usu-
capio, 302.
when, acquired by societas, 377*
Dominus.
who cannot alienate, 163.
Donatio inter vivos, 367.
Dos.
alienation of, 163, 168.
how, may be constituted, 332, 338.
surety for, exempt from lex Cornelia,
352.
effect of divorce as to, 533.
Dotale praedium.
alienation of, 163, 168.
Dower : see Dos.
Droit d'aubalne, 267.
Duplicatio.
nature and object of, 560, 580.
Edictum.
of Emperor, 2, 6.
of Magistrates, 2, 7.
provinciate, 7.
perpetuum, 8.
repentinum, 8.
trtdatitium, 8.
urbanum, 7.
Editio actionum, 495.
Emancipated children.
share of daughter by contra-tabular
possession, 190.
need not be instituted or disinherited,
193.
when contra-tabular possession is
granted to, 193, 198.
rights of, when emancipated by adop-
tive father^ 193.
rights of, when their father dies in-
testate, 276, 277, 281.
claims of emancipator upon property
of, 300.
Emancipatio.
how effected, 80-1, 83, 85 : and see
Emancipated children.
Anasfasiana, 85.
Jttstinianea, 85.
Emperors.
legislative power of, 2, 6.
conferred by Lex Reyia, 7.
early, maintained show of republican
institutions, 6.
from Diocletian, are undisguised auto-
crats, 6.
Emphyteusis.
a jus in re aliena, 131.
explained, 373.
a contract sui generis, 373.
right of owner of thing subject to, 131-2.
actio vectigalis lies respecting, 373.
germ of English freehold tenure, 375.
Emptio et venditio.
a consensual contract, 366.
how made, 367.
as to fixing price, 367, 370.
as to inadequacy of price, 370.
differs from exchange, 367, 37Oi
an-a merely evidence of, 367 ; but see
369-
at what moment property passes by, 368.
compared with English law, 368-9, 370.
Tt
642
INDEX
Emptio et venditio (continued}.
res perit domino does not apply to, 369.
obligation of vendor under, 369, 370.
duplae gtipulatio, 370.
as to warranty, 370.
sometimes closely akin to locatio con-
ductio, 371, 372.
emphyteusis resembles, 373.
who can sue when subject-matter of,
stolen, 415.
degree of diligence required under, 430.
English law.
chief references to,
denization and naturalization, 62.
legal tender, 78.
profits and easements, 132.
fine and recovery, 136.
as to usucapion, 157.
form of will, and witnesses, 180, 181.
age at which testamentary power is
acquired, 181.
meaning of heir, devisee, executor, be-
quest, 187.
wills as to erasure or destruction of, 207.
liability of executor, 216.
alien, power of to purchase property
and to take under a will, 267.
operation of will, 267.
execution on a judgment, 302.
bankruptcy, 393, 307.
imperfect obligation, 318.
bargains with expectant heirs and re-
maindermen, 324.
formal and formless contracts, 336,
guaranty must be in writing, 361.
contract of sale, 368-9, 370.
effect of paying earnest money, 369.
bailments, 374,
guaranty, 381.
theft, 414.
aiders and abettors, liability of, 414.
trespass and trespass on the case, 425.
real and personal actions, 448.
actions relating to incorporeal heredita-
ments, 449.
actio personalia moritur cum persona,
453-
wager of battle, 460.
conveyance of copyholds, 460.
arrest of absconding debtor, 467,
distress, 469.
set-off, 515.
executors and administrators, rights and
liabilities of, in actions ex delicto,
553-.
penalty implies prohibition, 567.
champerty and maintenance, 579.
Epistola.
of emperors, 2, 6.
a form of rescript, 61.
Equites.
Bomani, 22, 25.
as judicial assessors, 26.
equo publico, 25.
Ereption for indignitas.
different from lapse, 207.
instances of, 204, 207.
Error.
sometimes a title to patria potestas, 49
et seq., 52.
of law, effect of, in.
in omitting exceptio from defence,
550.
and see Mistake.
Erroris causae probatio, 31, 49.
Estate in remainder,
analogy to, in Roman law, 221, 222,
261.
Ex act a diligentia, 429.
Exceptio.
object and nature of, 556, 557, 565, 569
et seq.
stronger and weaker operation of, 550,
574-
various examples, 569, 570.
whether, affected by prescription, 551.
dilatoria, 558.
ex tempore, or ex persona, 558, 559.
if omitted can defence be amended ?
559.
whether fatal to claim, 579.
doli mali, 577, 578.
compensatio by, 513.
dominii, 569.
in personam, 573.
in rem, 574.
legis Anastasianae, 384,
Cinciae, 570.
nisi bonis cesserit, 570.
legis Plaetoriae, 570.
litis dividuae, 503, 558,
metus causa, 556.
pacti conventi, 558, 569.
pecaniae nou numeratae, 335, 576.
defence to action on stipulation,
335-
within what time, may be pleaded,
335-
peremptoria, 557.
if omitted defence may be amended,
559.
personae cohaerens, 573.
rei injudicium deductae, 535, 536, 544,
558.
rei cohaerens, 573.
rei iudicatae.
when necessary, 535, 536, 540.
discussed, 540 et seq.
changes in law affecting, 544,
rei residuae, 588.
Sc. Macedoniani, 566.
So. Velleiani, 566.
temporalis, 579.
venditae et traditae, 569.
Exchange.
an innominate contract, 329.
different from emptio et venditio, 367,
INDEX
643
Execution.
after judgment in personal action,
302-3.
different from bankruptcy, 302.
against body of debtor, 303, 304, 467.
against debtor's property, 303, 310.
Exercitor, 516, 519.
Exhibere, 596.
Existimatio : see Infamia.
Expensilatio.
literal contract, 363-5.
must be unconditional, 334.
formless converted into formal contract
by, 363-
obsolete in Justinian's time, 365.
Expromissio, expromissor, 356, 396.
Extranea persona.
dorninium could not be acquired through,
173 : but see 174.
no substitutio to, after aditio, 221.
appointed exercitor, or institor, 516.
Facere.
meaning of, in the formula, 447.
Faetio, 317.
Familiae emptor.
meaning, 176, 179.
words spoken by, 177.
no one in power of, can be witness of
a will, 177.
Family law, ai.
Fictiones.
remedy of publicanus, 471.
bonorum possessor being heres, 471-2.
bonorum emptor being procurator, or
heres, 472.
usucapio, 472.
peregrinus being civis Romanus, 473.
capitis deminutio, 473-4.
discussed, 476-8.
Fideieommissum.
origin and object of, 250-2.
difference between, and legatum, 250.
taciturn, 236.
of an hereditas, 246.
words creating, 246.
rights and obligations of heres and
transferee, 247-50, 252 et seq.
of res singulae, 258.
imposed on heres, 258.
legatee, 258.
what may be given, 258.
of another person's property, 258, 288.
differences between, and legatum,
charge on heres of heres, 259.
intestate uiay create, 259.
gifts by codicil, 260, 263.
legatee charged, 260.
liberty to servus alienus, 260.
women and Lex Voconia, 260.
Latini Juniani, 260.
slaves under thirty years old, 260-1.
gift after death of heres, 261.
procedure, 261.
Tt
Fideieommissum (continued}.
payment of interest, 261, 265.
use of Greek, 262.
heres disputing gift, 262.
overpayment by mistake, 262.
appointment of guardian, 263.
former differences,
penal dispositions, 263.
gifts to peregrini, 262.
celibates, 262.
orbi, 262.
incertae personae, 263.
distinction between, and legacies abo-
lished, 267.
Fidejussio.
a species of intercessio, 357.
and see Fidejussor.
Fidejussor.
how interrogated, 349.
may be accessory to civil or natural
obligation, 349.
heres of, is bound, 350.
extent of liability of, 350, 351, 352.
position in respect of co-surety, 351, 360.
remedy of, against principal, 353.
Fidepromissor.
how interrogated, 349.
why employed, 349.
can only be accessory to verbal con-
tracts, 349.
sometimes bound when principal is not,
349-
of slave or alien, whether bound, 349.
heres of, not generally bound, 350.
effect of, paying more than his share,
351.
liability of, how limited by law, 351.
has actio mandati against principal ,
353.
ceased to be employed, 359.
Fiducia.
general meaning, 73-
different from nuncupatio, 73-
use of, in coemptio, 68, 71) 72-
adoptio, 84.
cum amico, 151.
cum creditors, 151.
example, 326.
Filiusfamilias, Filiafamilias.
powers of paterfamilias over, 39, 39 seq.
capacities and incapacities of. 40 etseq.
right of, to sue in own name, 42-3.
proprietary rights of, 43.
cannot accept hereditas without consent
of paterfamilias, 171.
paterfamilias acquires rights through,
170, 171.
cannot acquire by in jure cessio, 173,
174.
testamentary capacity of, 43, 183.
effect of, being passed over in will,
filiusfainilias, 189.
filiafamilias, 190.
form necessary for disinheriting, 190-1.
644
INDEX
Filiusfamilias, Filiafamilias (con-
tinued).
are sui et necessarii heredes, but have
potestas abstinendi, 209.
paterfamilias can institute heres to,
when impubes, 219.
are sui heredes in intestacy, 269.
loans of money to, 324.
cannot enter into stipulations with
paterfamilias, 340.
filiafamilias cannot be bound to any one
by stipulation, 340.
effect of, becoming adstipulator, 348.
right of paterfamilias to obligationes
acquired by, 387, 388-9.
outrage upon, 426, 428.
contracts made by, at bidding of pater-
familias, 515.
when captain of a ship, 515-16.
manager of a shop, &c., 515-16.
in trade with knowledge of paterfamilias,
516.
conversion by, to use of paterfamilias,
517.
when liable to be surrendered in satis-
faction for delict, 521 ; ' change of
law, 524.
how surrendered in actio noxalis, 522.
interdict-possession by means of, 610-1 1.
Fiscus.
meaning, 119.
forfeiture to, for indignitas, 207.
rights and liabilities as universal suc-
cessor, 206.
rights and obligations as to caduca, 203 ,
205, 225 ; as to bona vacantia, 206.
Forfeiture for indignitas, 204, 207.
Formula.
arbitraria, explained, 496, 497, 498.
when, cannot be employed, 497.
examples of, in real actions, 497.
interdict procedure, 588, 606, 608.
dates of valuation, how expressed in,
499-500.
in actio de peculio, and de in rem verso,
51?. 520-
exercitoria, 520.
institoria, 520.
quod jussu, 520.
metus causa, 576.
when one person sues or is sued on
behalf of another, 525.
petitoria, 528, 532.
Calvisiana, 299.
.Fabiana, 299.
Octaviana, 417.
in actio furti manifest!, 412.
nee manifest], 415.
in actio vi bonorum raptorum, 416.
under Lex Aquilia, 425-6.
in actio injuriarum, 428.
in condictio ex causa furtiva, 450.
in actio juclicati, 467.
moulded on fictio, 471-3.
Formula (continued).
different parts of a, 480-1, 482-3.
praejudicialis, 481, 484.
can consist of only demoustratio and
condemnatio, 485-6.
in jus concepta, 486, 489.
ex bona fide, 489-90.
infactum concepta, 486, 489, 496.
in jus et infactum, 487, 495-6.
condemnatio in, always pecuniary, 487,
498.
Formulary system,
superseded legis actiones, 470.
fictions under, 471-3.
advantages of, over old system, 474.
commenced by in jus vocatio, 495, 624,
626.
gradually superseded, 477.
as to specific performance under, 496-7,
499-
procedure under, 495.
some contrasts of, with legis actiones,
593-
Forum.
discussed, 506 et seq.
of domicil, 506.
rei sitae, 506.
solutionis, 506.
Foundation,
meaning, 119.
pious, enabled to take under will, 1 19.
Freedmen, Freedwomen.
created by manumission, 18.
classes of, 18, 20-2.
changes by Justinian, 34.
guardianship of, 101, 109.
special regulations as to freedwomen,
103, 105, 112.
rights of patron, patroness, or their
heres to succeed at death of,
283-95.
alterations by Justinian, 299.
oath of, to patron to perform service.*,
&c., 332. 338.
and see Dediticius and Latinus
Junianus.
Freehold tenure,
germ of, in emphyteusis, 375.
Freemen.
classes of, 18.
Fructuaria stipulatio, 589-91, 608.
Fructus consumpti, 164.
extantes, 164.
Fructus licitatio, 589-90, 591, 608.
became obsolete, 599.
Furtum.
definition, 407, 411, 413.
an obligation ex delicto, 402.
oblatum, 405, 436.
conceptum, 405, 412.
lance et licio conceptum, 406, 4(3.
manifestum, 404, 406, 407, 411-12.
nee manifestum, 405, 406.
penalty of, 406, 411-12.
INDEX
645
Furtum (continued).
& private injury, 402, 411.
what dealings with property con-
stitute, 408.
no, without dolus, 408.
consent of owner prevents, 408.
by owner of thing stolen, 409, 413.
seizure of property without committing,
409.
aider and abettor guilty of, 409.
person who may sue on account of,
410-11,413,415.
whether impubes can commit, 411.
of a free person, 409.
remedies in addition to action for
penalty, 415.
ground for criminal prosecution, 416.
now belongs to criminal code, 41 1.
Gains : see Preface.
authority of writings of, 10.
was a Sabinian, 10.
indication of date of Institutes of, 221.
criticisms upon, as to divisions of law, 14.
of res, 125-6.
Galatians.
have children in potestate, 39, 44.
Gift, 367.
Guardianship : see Tutela.
Habitatio, 131.
Hadrian.
many grants of Latinitas by, 28.
Sc. as to erroris causae probatio, 50,
51, 52.
protection of slaves by, 38.
condemns father for killing his son,
39-
Sc. as to status of, issue of peregrinus,
and civis Romana, 53.
issue of Latinus and civis Romana,
54-5.
issue of peregrinus and Latina, and
vice versa, 55.
issue of freewoman and slave, 55.
women may make will without co-
emptio, 68, 182.
constitution : Municipalities may take
bequests, 120, 245.
Sc. usucapio pro herede revocable,
150, 155.
Sc. erroris causae probatio only invali-
dates will, if testator is alive at the
time, or son passed over entirely,
200.
relieves a person over twenty-five years
of age who had made aditio of an
hereditas, 210.
rescript : interest not payable on
legacies, 261.
Sc. incerta persona cannot take fidei-
commissa, 263.
as to responsa prudentium, 2, 10.
Hadrian (continued).
Sc. alien cannot take by fideicommissum,
262.
Sc. status of libertinus on obtaining
civitas by imperial grant, 294.
Epistola of: gave sureties benefit of
division, 350, 351, 357, 360.
Hasta.
signum justi dominii, 457.
Heffter.
why some actions were an extinctive
bar to subsequent actions, 539.
Hereditas.
is a universitas juris, 126, 175.
a res incorporalis, 123.
alienable only by in jure cessio, 142,
313-4, 315.
effect of surrender of, 142, 313-14.
as to acquisition of, by usucapio,
150.
portions of, could be acquired by
usucapio, 150.
ambulatoria, 224.
lapse of, how prevented, 224.
shares in, how allotted, 224-5.
Jidei commissaria, 246 et seq.
usual form of conveyance of, 315.
Hereditatis petitio, 281.
possessoria, 281.
Heres.
institution of, in solemn form, 185.
solemn form abolished, 187.
liability of, for debts, 215, 216.
contrasted with bonorum possessor,
281.
originally a juristic person could not
be, 1 20, 245.
could be witness of will, 178, 179.
compared with heir, devisee, and exe- '
cutor of English law, 187.
forfeited hereditas for indignitas, 204,
207.
suus must be instituted or disinherited
in will, 189 et seq.
who is, 191 et seq., 214, 269-70.
origin and object of the rules as to
institution or disinheritance of, 194,
213.
necessarius.
meaning, 208.
may be a slave, 208.
a person in mancipio, but praetor gives
him potestas abstinendi, 209, unless
he acts as heres, 210.
protected against usucapio pro herede,
150.
effect of institution of a, by an insolvent,
208.
effect of surrender of the hereditas by,
142, 314.
situs et necessarins.
meaning, 209, 215.
who may be, 209.
allowed potestas abstinendi by praetor
646
INDEX
Heres (continued).
209, unless he acts as heres,
210.
effect of surrender of hereditas by, 142,
314.
extraneus.
meaning, 210.
who is, 210.
has deliberandi potestas, 210.
cannot refuse after intei-fering with the
hereditas, 210.
unless a minor, 21O.
how, may accept the hereditas, 210-11,
215.
time within which, must accept, 210-
13, 215, 218.
may lose right to acquire the hereditas,
211-12, 215.
effect of surrender of hereditas by,
before acceptance, 142, 313-14.
after acceptance, 142.
liability of, for debts of the deceased,
215, 216.
servus suus may be instituted, but
only with liberty, 222, 223.
limit of liability of, 208.
effect of manumission or alienation of
servus suus who has been instituted,
222.
servus alienus may be, 222.
effect of servus alienus being instituted,
222.
object of the instituting servus alienus,
223-4.
how share of, in hereditas is allotted,
224.
with children, right of to caducum, 226,
230.
share of hereditas secured to, by statute,
237-8, 248.
penal institution of, void, 243.
postumus alienus could not be, 243 ;
but see 245.
capacity of a juristic person to be, 120,
245-
how fideicommissum is imposed on,
246.
rights and obligations of, when charged
with a fideicommissum of the inherit-
ance, 247-50, 252 et seq.
may be charged with fideicommissum of
res singulae, 258.
liability of, when res aliena is given as
a fideicommissum, 258.
cannot be instituted or disinherited by
codicillus, 260, 264.
may be deprived of the hereditas by
codicillus, 260, 264.
liability of, who disputes legatum or
fideicommissum, 262.
when, required to give security to
creditors, 533.
when right to sue or liability to be sued
does not pass to, 545, 552-3.
Heres (continued").
bound quasi ex contractu to legatee,
387-
of an intestate, fideicommissum may be
imposed upon, 259.
cannot be charged with legatum, 259.
suus first order of descent, 269.
who is : see suus heres.
children of deceased, represent their
father and take per stirpes,
270.
nearest agnate is, if DO sui heredes,
271.
who is, 271-3, 273-4.
no female may be, except sister of
deceased, 272, 275.
date for ascertaining, 272, 275.
effect of surrender of the hereditas
by, 142, 313-14.
gentiles succeed as, if no sui heredes
nor agnates, 273.
changes of the law as to, by Justinian,
275-6.
no successio graduum, 272, 274.
division is in capita, 273.
Honorarium, 385.
Husband.
alienation of dos by, 163, 168.
capacity to take under a will, 184.
order in which, is called to intestate
succession, 282.
right of, in respect of an insult to his
wife, 426, 428.
when entitled to beneficiumcompetentiae
against wife, 483.
right of, to retain part of dos, 533.
Huschke.
as to form of sponsio on quorum bonorum,
606.
Hypothecs, 327.
Ignominia, 305.
Ignorance.
of fact may be pleaded, in.
of law cannot be pleaded, in.
except when defendant is a woman,
minor, or soldier, 1 1 1 . '
of jus gentium or naturale compared
with that of jus civile, 1 1 1 .
effect of, on computation of time, 217.
Imperfect obligation, 318.
Imperium.
a component part of officium juris di-
centis, 536.
mixtum, 537.
merum, 537.
power of magistrate invested with, 537.
contrasted with jurisdictio, 536.
Impubes.
who is, 113, 113, 347.
when called infans, 347.
infantiae proximus, 347.
whether, can be guilty of furtum, 411.
acquisition of possession by, 616.
INDEX
647
Impubes (continued}.
guardianship of : see Tutela.
power of, to deal with property, &c. :
see Pupillus.
Incerta persona.
who is, 242.
could not take legacy, 242; but see
244-5-
be appointed guardian, 243.
freedom cannot be bequeathed to, 243.
could not be heres, 243 ; but see 244-5.
cannot take by fideicommissum, 263.
Inelegans, 329, 345.
Infamia.
how incurred, 96.
effects of, on ci vitas, 96, 97, 305.
is, a capitis deminutio? 96.
ID fans, 341, 347.
Infantiae proximus, 341, 347.
Ingenui, 18.
In integrum restitutio, 116 et seq.
In jure cessio.
a title of jus civile, 132.
form of, 134.
in provinces, 134, 140.
resembles English Fines and Recoveries,
136-
hereditatip, 142, 313-14, 315.
must be unconditional, 334.
servitudes created by, 141.
persons in potestate, in manu, or in
mancipio, cannot acquire by, 173, 1 74.
Injuria.
meaning of, in Lex Aquilia, 418.
in sense of outrage : see Outrage.
Innominate contracts.
similar to real contracts, 328.
how entered into, 328, 330.
examples of, 329.
how enforced, 328-9.
Inofflciositas.
nliusfamilias can impeach a will on
ground of, 42.
who could impeach a will on ground of,
213-14.
Inquilinus, 374.
Insolvency : see Bankruptcy.
Institor, 516, 519.
Intentio.
a part of the formula, 480.
example of, 480.
in action by bonorum possessor} 472.
in actio Rutiliana, 472.
Publiciana, 472 .
in certain actions by or against aliens,
473-
sometimes found alone, 481.
effect of claiming too much in, 501.
too little in, 503, 510.
Intercessio.
meaning, 356.
privative, 356.
cumulative, 356.
examples of, 356-8.
Interdictio aquae et ignis,
meaning, 59.
effect on status, 79, 94.
Interdietum.
nature and object of, 582, 594.
nature of procedure by, 588-92, 594,
607-9 ! finally assimilated to or-
dinary procedure, 620.
relates to subjects in almost all
departments of law, examples,
595-6-
classifications, 583, 587, 601.
adipiscendae possensionis:, 583.
why so called, 583.
instances of, 583-4.
de arboribus caedendis, 595;
de clandestina possessione, 602.
de glande legenda, 595.
de homine libra exhibendo, 595.
de liber is dttcendis, 595.
exhibendis, 595.
de libertis exhibendis, 595.
demolitorium, 595, 603-4.
de prccario, 602.
de superficieb us, 614-15.
duplex, 587, 603.
called mixed by Ulpian, 604.
procedure relating to, 588-91, 599;
exhibitor ium, 583.
fraud atorium, 596.
ne vis fiat, fyc., 596.
prohibitorium, 583.
simplex or duplex, 587i
populare, 595.
possessoriurn, 583, 596.
quam ht-reditatem, 596, 603.
quern fundum, 596, 603.
quern usumfructum, 596, 603.
quod legatorum, 596.
quod ii aut clam.
filiusfamilias can maintain, 42.
object of, 595, 604.
quorum bonorum, 583.
place in code, 597-
form, 597 ; of sponsio, 606 ; of Judicium
secutoriunij 606.
when employed, 597-8.
quotidianum, 600.
reciperandae possessions, 586.
instances, 586-7.
re&titutorium, 583.
retinendcte possessionis, 584.
instances, 584-5.
Salrianum, 328, 584.
place in code, 596, 597.
sectorium, 584, 596.
secundarium, 591-2, 609.
place in code, 596.
simplex, 587.
procedure relating to, 588-0.
uti possidetis, 587.
place in code, 595.
form, 587, 599-
duplex but sometimes simpler, 005.
648
INDEX
Interdictum (continued}.
might be retinendae or recuperandae
possessionis, 600.
utrubi assimilated to, 599.
compared with unde vi, 602.
when applicable, 605-6.
procedure, 607-9.
utrubi, 587.
place in code, 595.
form, 588, 599.
assimilated to uti possidetis, 599.
might be retinendae or recuperandae
possessionis, 600.
unde tu ilium vi dejecisti, 580.
place in code, 595.
two forms, quotidianum, 600.
de vi armata, 600.
only applied to immovables, 60 1.
new form applicable to movables, 60 1.
why used instead of uti possidetis,
602.
formula arbitraria relating to, 606.
Interdict-possession, 610.
Interest,
on money loan, could only be secured
by stipulation, 501.
on legacies, 261.
on fideicommissa, 261.
Intestate succession,
order of, by XII Tables.
1. sui heredes, 269.
who are, 269-70.
descendants of children take per
stirpes, 270.
2. Agnati -ae, 271.
who are, 271-2.
nearest grade of, only entitled, 271-2.
if nearest grade of, does not take the
other grades are excluded, 272.
time for ascertaining nearest grade
of, 272.
only females who are sisters by same
father can claim as, 272.
a brother excludes son of a deceased
brother, 272-3.
when only, are children of deceased
brothers they all take per capita,
273.
3. Gentiles, 273.
Harsh operation of rules of, by XII
Tables, 276.
corrected by Praetor's edict granting
bonorumpossessio, 277, 280.
Order of Praetorian Succession.
1. Unde liberi.
emancipated children share with sui
et suae heredes, 277, 282.
2. Unde legitimi.
agnates and other statutory heredes,
282.
3. Unde cognati.
agnates who had suffered capitis de-
minutio, 277.
agnates in remoter degree, 277.
Intestate succession (continued').
female agnates beyond the degree of
sisters, 277.
persons who trace descent through
females, 278.
children in adoptive family, 278.
those who neglected to claim as sui
heredes or agnates, 282.
all the above take as cognates, 282.
4. Unde vir et uxor :
husband and wife, when the wife is
not in manu, 282.
grant of, by Praetor's edict only gives
grantee bonorum possessio, 278,
280-1.
how, and within what time, must be
claimed by Praetorian law, 283.
effect of grant of, by Praetor's edict
when a person in a superior degree
is passed over, 281.
to freedmen : see under Freedmen.
Ipsum jus.
meaning of, 570.
Islands.
property in, 161.
Italic soil,
meaning, 77-
Judex.
pedaneus, 475.
must always condemn in a definite sum,
488.
may condemn in less but not in more
than sum fixed in formula, otherwise
might make a cause his own,
488-9.
Judicis postulatio.
a legis actio, 455.
explained, 461.
when applicable, 463.
Judicium.
calumniae, 621, 622, 623.
contrarium, 621, 622, 623.
Cascellianum, 590, 608.
also called secutorium, 590, 608.
security in, 533.
fructuarium, 553, 591.
called also secutorium but not Cascel-
lianum, 591.
quod imperio continetur.
meaning, 535.
not extinctive bar to a subsequent
action, 535, 539 et seq.
an action founded on a lex may be,
536.
an action founded on edict and brought
at Home is not always a, 536.
legitimum.
meaning, 535, 538.
expires in year and six months, 535,
538.
when an extinctive bar, 535, 539 et
seq.
INDEX
649
Judicium (continu&T).
every action founded on lex is not,
536.
action founded on edict and brought
at Rome may be, 536.
secutorium, 590, 608.
sometimes called Cascellianum, 590.
probable intentio in, 606.
effect of bringing, 608.
when, is absolutorium, 554, 555.
Jura.
in re, in re aliena, 129, 131.
Jurata promissio liberti.
form of, 332.
explained, 338.
Juris auctor, 10.
Jurisdictio.
in narrow sense, a component part of
officium jus dicentis, 536.
in wider sense, same as officium jus
dicentis, 537.
contentiosa, 537.
voluntaria, 537.
antithesis of, and lex, 537.
contrasted with imperium, 536.
Jurisprudence.
treats exclusively of positive law, 2.
Juristic persons,
meaning, 118.
different kinds of, 119.
capacity of, to take legacies, 1 20, 245.
to take inheritances, 120, 245.
Jurists.
authority of responsa of, 2, 9.
limitation of authority of, by law of
citations, 10.
writings of, codified by Justinian, 11.
rival schools of, 11-12.
list of some of the more illustrious, 1 1 ,
12.
chief controversies between —
as to puberty, 113.
res mancipii, 133.
surrender by heres necessarius, 142.
specificatio, 163, 167.
son being passed over in father's will
and dying in lifetime of father, 189.
vulgaris substitutio, 219, 221.
property passing by legacy per vindi-
cationem, 227.
ownership when legacy per vindica-
tionem is conditional, 229.
legacy per praeceptionem to a stranger,
233-4.
tutor appointed by will before insti-
tution of heres, 241.
legacy to a person in potestate of
heres, 243-4, 246.
effect of Sc. Largianum when children
of patron are co-heredes with a
stranger, 290-1, 292.
whether Sc. Largianum applied to
children of daughter or grand-
daughter of patron, 292-3.
Jurists (continued}.
in jure cessio of hereditas by suus, and
necessarius heres, 314.
impossible conditions in gifts by will,
339.
promise to stipulator and stranger, 340.
capacity of aliens to enter into literal
contracts, 362.
price in emptio et venditio, 367,
370.
recommendation creating mandatum,
379.
obligationes acquired by servus corn-
munis, 388, 389.
substituted solutio, 389, 394.
conditional novatio, 392.
extinguishment of actiones noxales,
522.
mancipatio of son in noxal surrender,
522.
what judicia were absolutoria, 554.
Jus.
ad actiones, 13, 14.
ad personas, 13, 14.
ad res, 13, 14.
aedilicium, 8.
civile, definition, 1, 4.
examples of institutions belonging to, 4.
effect of collision of, with jus naturale,
93-
commercii, 140.
edicendi, in whom vested, 2, 7-
how exercised, 7.
faciendi, 130.
gentium, definition, 1.
how promulgated, 3.
examples of institutions belonging to, 3.
obligations, how far recognized by jus
civile, 3.
slavery introduced by, contrary to jus
naturale, 36, 38.
habendi, 130.
honorarium, origin of, 7.
kept distinct from jus civile, 8.
in personam, 316, 446.
in rem, 446.
Italicum, 77.
naturale.
slavery contrary to, 38.
effect of collision of, with jus civile,
93-
non scriptum, 13.
posfliminii, 79.
explained, 80.
Praetorium, 8.
prohibendi, 131.
Quiritium, synonymous with civitas
Romana, 32.
Jusjurandum.
in litem, 499.
necessariwn, 485.
non calumniae causae, Sfc., 621.
Just a causa, explained, 138.
Justae nuptiae, 47.
650
INDEX
Justinian.
why constitutions had force of law, 7.
prohibits juristic writings, II.
his Code, .Digest, and Novels, ir.
changes effect of adoption, 66.
simplifies form of emancipation and
adoption, 85.
cognates guardians in place of agnates,
93-
minors could not be tutores, 106.
forms of guardianship in titne of, 108.
as to alienation of dos, 163.
forms of wills in time of, iSo-i.
as to disinheritance of sui heredes, 195.
as to revocation of will by destruction,
206.
beneficium inventarii introduced, 216.
institution of servus suus as heres im-
plies gift of freedom, 223.
leges caducariae abrogated, 226.
as to dies cedit, 225.
all legacies to be of one nature, 236.
as to legacies to incertae personae, &c.,
244-5-
legacies to juristic persons, 245.
Sc. Trebellianum and Pegasianum,
255-6- .
fideicommissum of res aliena, 263.
five witnesses to codicils, 264.
alterations in Law Terms and Vacations,
264.
distinction between fideicommissa and
legacies abolished, 267.
alterations in rules of intestate succes-
sion, 275.
title by agnatio abolished, 275-6.
deditieii and Latini Juniani abolished,
34-
Lex Fufia Caninia, repealed, 36.
alterations in rules of succession to
freedmen, 299.
usus and ususfructus not extinguished
by capitis deminutio minima, 313.
as to effect of adrogatio, 313.
as to payment to pupillus by mistake,
324-
contracts taking effect after the death
of the parties, 344-5.
payment to stipulator and third party,
347-
exceptio non numeratae pecuniae, 335,
576.
only actual satisfaction consumes right
of action against fidejussory 360.
beneficium excussionis introduced, 360.
as to price being fixed by arbitrator, 370.
arra, 369.
consideration for locatio conductio,
372-3.
obligatio acquired by servus communis,
389-
novatio, 396.
definition of furtum manifestum, 411,
4X5-
Justinian (continued").
as to attempts to corrupt a slave, &c.,
414.
as to damages for breach of contract,
422.
action of legatee for twice the value of
the legacy, 454.
rules as to litis-aestimatio, 500.
changes in law as to plus petitio, 510.
compensatio extended to real actions,
5M-
as to extinguishment of actiones noxa-
les, 523.
Judicatum solvi, 534.
pendency of actions, 539.
longi temporis praescriptio, 546.
longissimi temporis praescriptio, 546.
Judicia being absolutoria, 554.
res litigiosa, 579.
Justum Matrimonium, 47.
King, how elected, 7.
Knowledge.
effect of, on computation of time,
216-17.
Labeo.
founder of Proculian school, n.
his codicilli, 263.
Lapse,
caused by death of heres in lifetime of
testator, 224.
means of preventing, 224.
effect of, of share of a co-heres, 225.
of a legacy per vindicationem, 228, 230,
231.
pet damnationem, 230, 231.
Latinitas.
meaning, 28.
conferred as boon, 28.
majm, 6O, 61.
minus, 60, 61.
Latinus.
coloniarius, status of, 80.
Latinus Junianus assimilated to, 27.
Junianits, created by lex Junia Nor-
bana, 22, 26, 288.
who was a, 22.
status of, 22, 27.
posterity of, free from disabilities,
27*
could not take under a will, except
will of a soldier or by fideicom-
missum, 22, 181 ; but see 225.
could be witness of a willj 27.
goods of deceased, belong to patron,
289.
right of patron of, and patron's children
and heres, under Sc. Largianum,
290-3.
imperial grant of civitas to, gave
limited testamentary capacity,
293-4.
abolished by Justinian, 34.
INDEX
651
Latinus (continued}.
modes of becoming a Korean citizen —
marriage and birth of child under
certain conditions, 28.
six years military service, 29.
building ships, &c., 30.
building house, &c., 30.
carrying on business of miller, 30.
re-manumission, 30, 32.
erroris causae probatio, 31, 49.
summary of methods, 31-2.
status of offspring of, 54, 56.
guardianship of, 102, 104.
has connubium if specially privileged,
44, 48.
Latium : see Latinitas.
Law.
sources of, 1-2.
of persons and of things, discussion
upon, 14.
of equal and unequal rights, 15-17.
of status, 15.
Law of citations, 10.
Law terms, 264.
Legacy.
different kinds of, 226.
per rindicationem, meaning, 226, 227.
form, 226.
what may be left by, 227.
time when property in, passes to
legatee, 227.
effect of thing bequeathed by, being
alienated, 228.
effect of, when joint or several, 22S,
236.
effect of condition upon, 229.
lapse of, 228, 230, 231.
effect of Sc. of Nero on, 228.
per damnationem, meaning, 229.
form, 229.
what may be left by, 229.
time when property in, passes, 229.
effect of, when joint or several, 230,
236.
lapse of, 230, 231.
qinendi modo, form, 231.
what may be left by, 231.
time when property in, passes, 231-2.
whether heres is bound to convey,
232.
effect when several, 232, 236, 237.
effect of Sc. of Nero on, 235.
per praeceptionem, form, 232.
dispute whether, any one except co-
heres could take, 232-3.
means of enforcing, 233, 234.
effect of, when joint or several, 235.
effect of Sc. of Nero on, 233, 234.
alterations in the law as to, 228, 230,
235-6-
restrictions on amount of, 237-8.
of part of an inheritance, probable origin
of, 239, 253.
explained, 248, 253.
Legacy (continued).
to juristic persons, 1 20, 245.
given before institution of heres, 240,
244.
to take effect after death of here?, 241,
244.
poenae nomine, 241, 242, 244.
to incertae personae, 242, 244-5.
to after-born strangers, 243, 245.
to a person in potentate of heres, 243,
246.
conditional, compared with conditional
contract, 245.
recovered by judex and formula, 261.
cases relating to, only heard in term
time, 261.
interest not generally payable on, 261,
265-6.
surety for, exempt from lex Cornelia,
352.
how released per aes et libram, 391,
395-
difference between, and fideicominissum,
250, 259 et seq. ; see under Fidei-
commissum.
distinction between, and fideicommissa
abolished, 267.
Legatarius : see Legatee.
partiarius, 248, 253.
Legatee.
can be witness of the will, 178.
forfeited legacy for indignitas, 207.
partiary, meaning, 248, 253.
stipulation by, 248, 253.
may be charged with fideicommissum,
26O.
cannot be charged with legatum, 260.
heres bound quasi ex contractu to, 387.
has actio legati against heres, 387.
Legatus.
jurisdiction of, 9.
Caesar in, 9, 139, 140.
Leges Caducariae, were the lex Julia de
maritandis, and lex Papia Poppaea,
225.
effect of, 181, 225-6, 262.
abrogated, 226.
Leges Juliae.
finally abolished legis actiones, 470.
what were the, 474.
Legis actiones.
why so called, 454, 459.
five forms of, 455, 459.
sacramentum, 455-8, 460-2.
judicis postulatio, 455, 461, 463.
condictio, 458, 462-3.
manus iujectio, 463-5, 465 et seq.
pignoris capio, 468, 469-70.
abolished, except in two cases, 470,
4.74-
deficiency of, 474.
a person could sue or be sued by, as
representative of another in certain
cases, 524, 527.
652
INDEX
Legis actiones (continued).
always an extinctive bar to subsequent
actions, 536.
contrasted with Formulary procedure,
593-
Leo.
constitution ; error of law not to excuse
women, in.
municipalities to be capable of being
successors, 120, 245.
constitution ; necessity of consecrated
terms in stipulations abolished, 338.
Lex.
a title of civil law, 157, 158.
definition, 1, 5.
regia, or imperil, 7.
JBithynorum, 110.
censoria, 468, 470.
perfecta, 566.
minus quam perfecta, 238, 566.
Aebutia.
as to abolition of legis actiones, 470,
474-
Aelia Sentia.
when passed and object, 25.
as to dediticii, 20-3.
conditions of valid manumission, 21,
33.
as to Latiui attaining civitas Romana,
28-9.
Latinus married to Latina or civis
Romana may obtain patria potestas,
40.
as to manumitter being under twenty
years of age, 33.
evaded by fideicommissum, 260.
devolution of goods of Latinus Junianus
and dediticius, 288, 294.
restrains manumission in fraud of
creditors or patron, 33; this extended
to aliens by Sc., 35.
how far repealed by Justinian, 34,
36.
Appuleia.
sponsores and fidepromissores who had
paid more than their share could
recover excess from co-sureties, 351,
.359-
did not apply to fidejussores, 351.
Aquilia.
a plebiscitum, 421.
when passed, 42 1 .
Cap. I, 418, 421.
Cap. II, 419, 423-4.
Cap. Ill, 420, 424.
measure of damages under, 418-19,
420, 421-2.
actions under, 421, 424.
compared with English law, 425.
creates obligatio ex delicto, 402.
noxalis actio under, 521.
Atilia.
as to appointment of guardians at
Home by magistrates, 107.
Lex (continued}.
Calpurnia.
extended condictio, 458, 462.
C • cereia.
sureties entitled to declaration by
creditors of amount of the debt,
&c., 351, 359.
Claudia,
abolished agnatic guardianship of
women, 72, 92.
and so abolished right of agnates to
create cessicia tutela of females,
103.
Cornelia,
limits amount for which sureties may
be liable, 352, 359.
de sicariis.
extended to slaves, 38, 423.
repetundarum.
as to extortion by governors of
provinces, 416.
testamentaria.
as to wills of persons taken captive,
183.
Crepereia.
as to amount of deposit in an action,
529.
Falcidia.
heres to receive a fourth of inheritance,
238.
chief clause of, 240.
operation of, in connexion with fidei-
commissa, 256 et seq.
Fufia Caninia.
limits number of slaves to be manu-
mitted by will, 34, 35.
abrogated by Justinian, 36.
Furia de sponsu.
as to liability of sponsores and fide-
promissores, 350, 359.
only extended to Italy, 350.
not a lex perfecta, 466.
as to nianus injectio, 464, 466.
Puria testamentaria.
a plebiscitum, 5.
legacy or donatio mortis causa not to
exceed 1000 asses, 237-
was a minus quam perfecta lex, 238.
exceptae personae under, 239.
as to man us injectio, 464, 466.
Hortensia.
plebiscita made binding on populus, 1.
Julia.
permitted cessio bonorum, 301, 308.
Julia de adulteriis.
as to repudium, 87.
as to alienation of dos, 163, 1 68.
Julia de maritandis.
as to right of state to caduca, 203,
205.
incorporated with lex Papia Poppaea,
225.
Julia de vi publica et privata.
penalty for violence, 416.
INDEX
653
Lex (continued}.
Julia et Papia.
a mode of referring to the lex Julia
de Maritandis and lex Papia Pop-
paea, 225.
Julia et Plautia.
no usucapio of things taken by
violence, 148.
Julia et Titia.
as to appointment of guardians in the
provinces by magistrates, 107.
Julia municipalis.
ci vitas Romana given to whole of
Italy, 297.
Julia judiciaria.
as to jndicia legitima, 535, 538.
Julia vicesima (or vicesimaria).
imposed a duty on testamentary suc-
cession of cives Romani, 352, 360.
regulations for proving wills, 268.
Junia Norbana.
created Latini Juniani, 22, 26, 288.
as to Latinus Junianus acquiring
civitas by marriage, according to
Ulpian, 28, 31.
as to tutela of Latini, 102.
as to succession to Latini, 102, 288.
Junia Vellaea.
as to postumi liberi and those who
succeed to place of sui heredes,
193, 196.
Marcia.
as to manus injectio, 464.
quadruple penalty, 467.
Minicia.
if civis Romanus marries peregrina or
peregrinus marries civis Romana,
not having conubium, the offspring
is alien, 53, 54, 56, 60.
Ollinia, 536. 540.
Papia Poppaea.
conubium between ingenui -ae, and
libertini -ae, 48.
exemption from tutela, 88, 112.
incorporation of provisions of lex
Julia de Maritandis, 225.
as to caducum, 225.
dies cedit at opening of will in absence
of condition, 225.
as to lapsed legacies, 230-1.
as to patron's right to share with
children of freedmen, 284.
four children release freedwoman from
tutela of patron, 285.
but patron is entitled to share of a
child if she makes a will, 285.
as to right of patron's daughter to
inheritance of a freedwoman, 286.
as to right of patroness to inheritance
of a freedwoman who is civis Ro-
mana, 287.
Petronia.
a slave not to be exposed to wild beasts
without magistrate's order, 37.
Lex (continued).
Pinaria.
as to time of nomination of judex in
sacramentuin, 456.
Plaetoria or Laetoria.
against defrauding minors, 115.
Poetelia.
abolished personal execution in respect
of nexum, 305, 322.
restrained cruelty of creditors to
debtors, 304.
Pompeia de parricidiis.
paterfamilias not subject to, 39.
Publilia.
sponsor could recover double from
principal unless repaid in six months,
353, 360.
as to manus injectio, 464.
Silia.
created condictio, 458, 462.
Scribonia.
abolished usucapio of servitudes, 145.
XII Tabularum.
as to three sales of a filius, 81, 87.
trinoctio abesse, 67, 69.
vestal virgins exempt from tutela,
88.
agnatic guardianship, 91, 92.
guardianship by patrons, arose from
interpretation of, 101.
curatio of lunatics and prodigals regu-
lated, 116.
as to mancipatio, 135, 136.
as to usucapio of movables and im-
movables, 147, 150.
no usucapio of things stolen, 148.
as to usucapio ofresmancipiiof women
in tutela of agnates, 148.
as to actio de tigno juncto, 166.
agnatic committee of lunatic can
alienate lunatic's property, 163.
as to passing of property in contract of
sale, 139.
recognizes testamentary disposition,
179.
recognizes testamentary words of
clause, 237, 238.
as to intestate succession,
of sui heredes, 269.
of nearest agnates, 271 ; words of the
lex, 274.
of gentiles, 273.
right of patron and his heres to in-
heritance of his freedmen, 283, 285,
287.
proceedings in manus injectio, 301,
304, 463, 465.
penalty for theft, 406.
injuria (outrage), 427 ; but tee
428-9.
amount of penal sum in sacramentum
respecting liberty, 456.
as to pignoris capio, 468.
actio noxalis for theft, 521.
654
INDEX
Lex XII Tabularum (continued),
noxae deditio for pauperies, 524.
as to vindiciae dicendae, 609.
Vallia.
as to manus injectio, 465.
Visellia.
Latinus acquired civitas by six years
service in Roman guards, 29, 31,
32-
Voconia,
legatee or donee mortis causa not to
take more than heres, 237.
other provisions of, 239,
evaded by fideicommissa, 260.
Libellary Procedure.
superseded formulary procedure, 477.
sketch of, 626-7.
Libellus contradietionis or respon-
sionis, 627.
Libellus conventionis, 627.
Liberal professions,
what were, 385.
remuneration of, 385.
Libertini, 18.
and see under Freedmen,
Libripens.
meaning, 74, 77, 177.
no one in power of, can be witness of a
will, 178.
Limitation of actions.
different from usucapio, 157.
and see under actions.
Literal contract,
how entered into, 361, 363—4.
debits to cash are not, 361, 365.
whether aliens are bound by, 362.
chirographum a form of, 362.
syngrapha a form of, 362.
expensilatio a form of, 362.
is unilateral, 366.
cancelled by accepti relatio, 395.
became obsolete, 365.
Litis aestimatio.
when ascertained by oath of plaintiff,
499-
date for valuation, 499-500.
how assessed, 421—3, 500.
Litis contestatio.
a kind of quasi-contract, 266.
consequences of, similar to effect of
mora, 267.
judgment relates back, to time of, 401 ;
but see 399.
effect of, respecting solidarity and cor-
reality, 355.
in extinguishing obligations, 892-3,
397 et seq.
meaning of, 396.
the various operations and effects of,
collected, 398-401.
Litteris obligatio : see Literal con-
tract.
Locatio et conductio.
a consensual contract, 366.
Locatio et conductio (continued}.
how entered into, 371.
sometimes closely akin to emptio et
venditio, 371, 372.
as to fixing merces, 371, 372.
whether consideration must be money,
371, 372-3-
emphyteusis resembles, 373.
operis faciendi, 374.
who is locator and who conductor
under? 374.
degree of diligence required in, 430.
Locator.
who is, 374.
Lucrum cessans, 422.
Lunatic.
cannot enter into any contract, 341.
under curator though not a minor, 116.
Mancipatio.
distinguished from coemptio, 76, 78.
form, 74.
what may be conveyed by, 75, 141.
only Roman citizens can be parties to,
74.
origin of, 135, 136.
a title of jus civile, 132.
a form of testamentary disposition, 176,
179.
cumfiducia : see Fiducia.
must be unconditional, 334.
Mancipatory Will, 176, 179.
and see under Will per aes et libram.
Mancipii causa, Mancipium.
who are in, 74.
how created, 74.
legal effect of, 76, 87.
causes cap. dem. minima, 94.
how different from manus, 76.
how extinguished, 86.
manumission from, causes cap. dem.
minima, 94.
sometimes extinguished without consent
of master, 86 .
persons in, acquire dominium for the
master, 171.
whether persons in, acquire possession
for the master, 171.
persons in, cannot acquire by in jure
cessio, 173, 1 74.
ceased to exist before Justinian's time,
!73-
as to persons in, being instituted heredes
by master, 209-10.
person in, not bound by any stipulation,
340.
cannot be adstipulator, 348.
obligations acquired by, 387.
actions ex contractu against, 522.
Mandator, 381.
Man datum.
a consensual contract, 366.
qualificatiim, 358, 379.
motive for introduction of, 360.
INDEX
655
Mandatum (continued).
how entered into, 378-9, 380.
will a recommendation create? 379,
381.
is void, if to be executed after agent's
death, 379.
how terminated, 379.
effect of execution of, after principal's
death, 379-80.
agent deviating from terms of, 380,
384-
English law bearing on, 381.
delegatio a species of, 381.
assignatio a species of, 382.
agendi, 383.
is gratuitous, 383 ; but see 380, 385.
degree of diligence required in, 430.
Magistrates,
power of issuing edicts, 8.
old republican and imperial nominees,
9-
imperium and jurisdictio of, 536.
Maine,
origin of testamentary dispositions,
280.
Mancipium : see Mancipii causa,
Manum conserere, 461.
Manumission,
how effected, 21, 22.
a public or private act, 23, 24,
restraints on, 21, 33, 34.
and see Freedmen.
Manus.
meaning, 66.
father has, over wife of a son in potestate,
69.
how created, 66, 67.
peculiar to Roman citizens, 66.
legal effect of, 68, 312, 313.
gradually became obsolete, 68.
ceased to exist before Justinian's time,
69.
extinguished by mancipation and manu-
mission, 85.
of husband, how different from that of
other persons, 85.
person in, acquires dominium for per-
son who has, 171.
whether person in, acquires possession
for person who has, 171.
person in, cannot acquire by in jure
cessio, 173, 174.
as to obiigationes acquired by person in,
387.
effect on debts of women who became
subject to, 312, 313, 473, 480, 522.
Manus injeetio.
a legis actio, 455.
procedure, 304, 463, 464.
projudicato, 464.
pura, 464.
when applicable, 463-4, 465-6, 467.
when a mode of self-redress, 465.
a form of execution, 303, 304.
Marcus Aurelius.
grants of civitas Romana by, 61.
constitution ; as to curators, 115.
as to juxta-tabular possession, iSS.
forfeiture for indignitas, 204.
pro herede gestio, 221.
pupillaris implied in vulgaris substitutio
and vice versa, 221.
alterations in Law Terms and vaca-
tions, 265.
as to cretio imperfecta, 221.
rescript ; as to compensatio, 513.
Marriage.
whether a contract ? 46-7.
parties must have conubium, 44.
between ascendants and descendants
prohibited, 44.
between certain collaterals prohibited,
45, 48.
between some relations by marriage
prohibited, 45, 49.
nefarious and incestuous, no marriage,
46.
requires consent of paterfamilias, 49.
a means of acquiring patria potestas,
39, 44, 49 et seq.
civil, 47.
gentile, 47.
effect of, between —
Latinus and Latina, 49.
and civis Romaiia, 49.
civis Romanus and Latina or peregrina,
50, 51, 54.
and Libertina dediticiorum numero,
50.
civis Romana and Latinus or peregrinus,
50, 52, 53.
and libertinus dediticiorum numero,
50.
Latina and peregrinus, 51, 55.
Latinus and peregrina, 51, 55.
civis Romanus, thinking himself
Latinus, 51.
civis Romanus, thinking himself pere-
grinus, 51.
how dissolved, 87.
See Manus.
Matrimonium, 47.
Metus.
ground for exceptio, actio and in in-
tegrum restitutio, 576.
Military Will, 181, 182.
Minor,
who is, 114.
curator appointed to, 114, 115.
legal effect of appointment of curator
to, 1 1 6.
nature of curator's obligation to, 386.
Missio in possessionem.
explained, 302, 306-7.
Mistake,
effect of payment of legacy by, 262,
267.
fideicommissum by, 262.
656
INDEX
Mistake (continued],
money by, 323, 324.
money by, to pupillus, 323, 324.
effect of payment of money by, to a
woman, 323.
effect of as to subject of claim in an
action, 503, 510.
sometimes confers aright, 49, 52.
Modestinus.
authority of writings of, IO.
short account of, 13.
Mommsen.
as to election of King, 7.
Mora,
interest on legacies and fideicommissa
payable from date of, 265-6.
when, commences, 266.
different from nativity of action, 266.
demand of payment not always neces-
sary to cause, 266.
genuine doubt as to liability prevents,
266.
Municipality,
meaning, 296.
capacity of, to be heres or legatee, 1 20,
245-
how citizenship in, acquired, 296^7*
chief effects of citizenship in, 297.
Municipium : see Municipality.
Mutuum.
effect of, by pupillus, 169, 170.
by a woman, 169, 1 70.
a real contract, 323.
how entered into, 323.
is gratuitous, 324.
no interest payable on, except by stipu-
lation, 324, 501.
how enforced, 324.
Naturalis obligatio.
meaning and effect of, 5, 3175 318.
novatio produced by, 391, 396.
Naturalis ratio, 1.
Naturalization.
in English law, 62.
Negligence.
degrees of, discussed, 429.
Negotiable paper.
not recognized in Roman law, 384.
Negotiorum gestor, 386, 527.
nature of obligation of, 386.
Nemo pro parte testatus, &c.
origin of maxim, 194.
Nero.
enacts that building houses, &c., confers
civitas Eomana, 32.
Sc. of as to form of legacies, 228, 234,
235-
Sc. Trebellianum in reign of, 247, 252.
Nerva
and Hadrian, constitution; all mu-
nicipalities can take legacies, 120,
245-
Nexi liberatio, 322.
Nexum.
its characteristics uncertain, 321.
a form of contract, 322.
practically abolished by lex Poetelia,
322.
Nomina arcaria.
meaning, 365.
create real obligation, 361.
Nomina transcriptitia.
meaning, 361.
origin of term, 364.
Novatio.
formerly the only mode of transferring
obligations, 143.
obligations extinguished by, 391.
when new term essential, 391.
effect of a woman being a party to,
391.
pupillus being a party to, 391.
slave being a party to, 391.
when conditional, 391-2, 396.
by Aquilian stipulation, 394.
naturalis obligatio may operate as, 391,
396-
doubt whether addition of sponsor pro-
duces, 391-2, 396.
necessaria, 397.
voluntaria, 397.
produced by litis contestatio, and by
judgment, 393, 397.
Noxae deditio, 521 : see Actio noxa-
lis.
Nuda pactio.
meaning, 320.
produces naturalis obligatio only, 320.
can be used as an exceptio, 320.
effect of, to pay interest, 501.
Nuda repromissio.
meaning, 360.
Nudum pactum : see Nuda pactio.
Nuncupatio.
meaning of, in making a will, 177.
Nuncupative will, 180.
Nuptiae, 44, 47 : and see Marriage.
Obligatio, obligation,
nature of, 315-17.
Justinian's definition, 316.
division of, 317-18.
division of, by Gaius, 315, 318-19.
civilis, 317, 318.
ex contractu, 318 : and see Contract.
ex delicto, 318 : and see Delict.
quasi ex contractu, 318, 386-7.
quasi ex delicto, 318.
naturalis, meaning and effect of, 5, 317,
3i8.
compared with English law, 318.
may produce novatio, 396.
through what persons, may be acquired,
17.4, 345-7, 385-6, 387-8.
a res incorporalis, 123.
as to transfer of, 143.
extinguishment of, by solutio, 389.
INDEX
657
Obligatio, obligation (continued).
by same kind of agreement by which
it was created, 390.
acceptilatio, 389-90, 394.
per aes et libram, 390.
novatio, 391, 392, 395-6.
litis contestatio, 392-3, 396 et seq.
Occupatio.
a title of jus gentium, 160, 165.
instances of, 160.
Officium jus dicentis.
explained, 536, 537.
Omnia judicia esse absolutoria, 399,
554, 555.
Operis novi nunciatio, 595, 603-4.
Oratio, 6.
Orbi.
definition, 225.
limited right of, to take inheritances
and legacies, 181, 225-6.
disabilities of, inapplicable to will of
a soldier, 181.
disabilities extended to fideicommissa,
262.
disabilities abolished, 226.
Origo.
' confers civitas in a municipality, 296.
determines a person's general forum,
298.
Outrage (injuria).
meaning, 428.
obligatio ex delicto created by, 402.
what constitutes, 426.
through whom, may be suffered, 426,
428.
penalty for, 427.
degrees of, 427.
requires dolus malus, 428.
is ground for civil or criminal proceed-
ings, 428.
now belongs to criminal code, 42^.
actio injuriarum in respect of, 428.
Facta vestita, 328.
e. g. constitutum, 365.
Pactio et stipulatio.
a mode of creating servitudes, 141,
143-4-
Pactum, 319, 320.
Fapinianus.
authority of writings of, 10
short account of, 12.
Parens manumissor, 300.
right of succession of, to emancipati,
300.
changes by Justinian, 300.
Partiarius legatarius.
definition, 248, 253.
stipulations between, and heres, 253.
Partiary legatee : see above.
Partner.
when entitled to beneficium competen-
tiae, 483.
and see Societas.
Paterfamilias,
power of, over slaves, 36—7, 37, 38-
over person of descendant, 39, 39, 40.
over property of descendant, 40, 41, 43.
has usufruct in peculium adventicium,
43-
consent of, necessary to marriage of
those in potestate, 49.
acquires dominium by persons in his
power, 170.
possessio by persons in his power, ex-
cept, perhaps, those in manu or
mancipio, 171.
acquires obligations by person's in his
power, 387, 388-9.
outrage inflicted upon, through persons
in his power, 426, 428.
when, entitled to beneficium compe-
tentiae, 483.
liability of, when filiusfamilias or slave
enters into a contract, by his order,
515.
as his exercitor or institor, 515-16.
in trade with his knowledge, 516.
without his consent, 517.
no valid stipulation between, and those
in his power, 340.
liability of, for delicts of those in his
power, 521-2.
Pater fiduciarius, 84.
Patria potestas.
peculiar to citizens of Rome, 39.
nature of, 39 et seq.
a consequence of justae nuptiae, 39,
44, 47.
erroris causae probatio, 49 et seq.
compliance with a provision of lex
Aelia Sentia, 49.
express grant of emperor, 60.
majus Latium, 60-1.
adoptio, 62, 64 ; but see 66.
not obtained by alien becoming civis
Eomanus unless expressly granted,
84, 193.
suspended by capture in war, 79.
extinguished by death, 78.
interdiction from fire and water, 79.
filiusfamilias becoming flamen, 80.
filiafamilias becoming a vestal virgin,
80.
becominga Latin colonist ; formerly, 80.
emancipatio, 80, 82, 85.
giving in adoptio, 82 ; but see 66.
coemptio but not by confarreatio, 83.
Patricii, 1.
Patron a.
cannot be guardian, 112.
right of, to inheritance of libertus civis
Roman us —
by XII Tables, 286.
lex Papia Poppaea, 286, 287.
right of, to inheritance of liberta civii
Romana before lex Papia Poppaea,
287.
U U
658
INDEX
Patrona (continued).
under lex Papia Poppaea, 287.
right of son of, to inheritance of libertus
-a civis Romanus -a, 287.
cannot be summoned by libertus without
praetor's leave, 624.
Fatronus.
manumission in fraud of, 33.
right of, to tutela of liberti -ae, 101, 102,
right of, to assign tutela mulierum, 103.
when tutor and absent cannot be super-
seded, 105.
powers of, when tutor of women, 109.
sanction of, necessary to grant of juxta-
tabular possession under a woman's
will, 186.
right of, to inheritance of libertus civis
Romanus —
by XII Tables, 283.
Praetor's edict, 283-4.
lex Papia Poppaea, 284.
right of, to inheritance of liberta civis
Romana —
before lex Papia Poppaea, 284-5.
under lex Papia Poppaea, 285.
rights of, to inheritance of libertus -a
pass to all male descendants through
males, 285.
right of daughter, and granddaughter
and great granddaughter by son or
grandson, of, to inheritance of liber-
tus -a —
by XII Tables, 285.
Praetor's edict, 285.
lex Papia Poppaea, 286.
heres extraneus of, cannot succeed to
inheritance of libertus -a civis Ro-
manus -a, 286.
right of, and his heredes to goods of
Latinus- a Junianus -a, 288-94, 295.
right of, and his heredes to goods of
dediticius -a, 294-5.
right of, and his heredes where there are
two or more patrons, 289-90, 295.
how protected against fraudulent aliena-
tion by libertus -a, 299.
relation of, and colonus, 375.
formula in action by, against libertus
who has summoned him in violation
of the edict, 486.
cannot be summoned by libertua with-
out praetor's consent, 624.
Paalus.
authority of writings of, 10.
short account of, 13.
as to cap. dem. minima, 98, 100.
Pauperies, 524.
Peculium.
origin and nature of, 43.
castrense, 43.
quasi castrense, 43.
adventicium, 43.
profecticium, 44.
Pedaneus judex, 475.
Per aes et libram.
a mode of extinguishing obligations,
390, 395.
and see Coemptio, M"exum.
Mancipatio.
Mancipatory Will.
Peregrinus -a.
acquisition of civitas by erroris causae
probatio, 50, 51, 52, 31.
by imperial rescript, 60, 61.
had not connubium or commercium
unless specially privileged, 44, 47.
status of offspring of, and civis, &c.,
50-5.
dominium of, 146, 151-2.
cannot take under will, except will of
a soldier, 181.
cannot take by fideicommissum, 262.
cannot acquire dominium by usucapio
when bonorum emptor, 302.
stipulations by, how made, 331.
whether, is capable of entering into a
literal contract, 362.
feigned to be a civis Romanus in certain
actions, 473.
Permissive occupancy.
compared with commodatum, 602-3.
Permutatio.
an innominate contract, 329.
differed from emptio et venditio, 367,
37°-
Persecutio, 626.
Personae.
divisions of —
ingenui, libertini, 18.
cives Romani, latini, dediticii, 18.
sui juris, alieni juris, 36.
Personarum universitas.
explained, 118 et seq.
and see further under Juristic person.
Persons : see Personae and Persona-
rum universitas.
Pignoris capio.
proceeding in ordinary execution, 303,
310.
different from bankruptcy proceedings,
3io.
a legis actio, 455, 468 ; but see 469.
fiction of, in formula, 471.
how introduced, 468, 469.
resembled English distress, 469.
Pignus.
a jus in re aliena, 131.
power of pledgee to alienate, 164,
168.
a real contract, 324.
three forms of, 326.
how enforced, 326-7.
pledgee can sue for theft of, 410,
418.
Flebiseitum.
definition, 1.
popul us bound by, after lex Hortensia, 1.
sometimes called lex, 5.
INDEX
659
Plebs, 1.
Pledgee.
power of, to alienate, 164, 168.
can sue for theft, 410, 418.
and see Pignus.
Plus petitio.
meaning, 501-2, 503.
re, 502.
tempore, 502, 509.
loco, 502.
causa, 502.
effect of, in intentio, 501, 510.
in condemnatio, 503.
in demonstratio, 504, 510.
when avoided by formula arbitraria,
5°5-6.
ex bona fide, 506.
changes in law as to, 509-10.
Populiscita.
leges sometimes called, 5.
Populus, 1.
Possessio.
place of in Roman law, 430-1, 617-19.
pro possessore, 154.
differs from dominium with respect to
abandonment, 165.
acquired through persons in potestate,
171.
whether, acquired through persons in
mancipio, 171.
whether, acquired through a person in
manu, 171.
whether acquired through extranea
persona, 173, 174.
definition of, 609.
juristic, 610.
cirilis, 610.
juris, 613.
naturalis, 610, 613.
for purpose of usucapio, 156, 610,
614.
for purpose of interdict procedure, 156,
610, 613.
discussed with reference to things in
custody of —
a slave, 610-11.
discussed with reference to things in
custody of —
fijiusfamilias, 610-11.
an agent, 611.
a borrower, 611.
a hirer, 611.
an emphyteuta, 611, 614.
a mortgagee, 612, 614.
a depositary, 586, 612.
a permissive occupant, 612, 614.
an owner of a servitude, 612-13.
a sequestrator, 612, 614.
superficiarius, 615.
colonus, 585.
an inquilinus, 585.
peculiarity as to acquisition of, by an
infant, 616.
essentials for acquiring, 615.
Fossessio (continued).
essentials for retaining, 586, 616.
how, interrupted, 615.
effect of, of an universitas rerum, 616-1 7.
Possessor.
bonajide, rights and liabilities of, as to
fructus, 164.
of slave, right to the things acquired
by the slave, 172.
mala fide, liability in respect of fructus,
164.
and see Possessio.
Postliminium.
explained, 79, 80.
Postumi -ae.
who were, 195.
may have testamentary guardian, 89.
when passed over in the will their birth
invalidates the will, 191, 192.
males must be disinherited individually,
192, 193.
females may be disinherited by a
general clause, if something be left
to them, 191, 193.
general statement of the law as to,
195 et seq.
Aquiliani-ae, 196, 197.
Salviani -ae, 196, 197.
Vellaeani -ae, primi capitis, 196, 197.
secundi capitis, 196, 197.
alieni -ae.
cannot be legatees or heredes, 243 ;
but see 198.
cannot take by fideicommissum, 263.
liberi, sui heredes intestati, 270.
Potestas abstinendi, 209.
Potestas deliberandi, 210.
Praedes litis et vindiciarum, 457,
462.
Praedia Italica.
explained, 77.
Praediator.
definition, 151.
see Praediatura.
Praediatura.
explained, 151, 155, 470.
Praefectus, 9.
Praejudicium.
a proceeding to settle a preliminary
issue, 484.
Praescriptio (the effect of lapse of time).
longi temporis, 155, 546.
lonffissimi temporis, 156, 546.
temporalis, 157, 546.
becomes equivalent to usucapio, 581.
canon law as to, 547.
change as to length of time necessary to
produce, 546 ; rule fcs to, 551-2.
at what moment, begins to run, 547.
interruption of, 548.
suspension of, 549.
effect of, of real actions, 550.
of personal actions, 550.
as to, of right to plead exceptio, 551.
u u
660
INDEX
Praescriptio (i. e. a clause in the
formula).
nature and object of, 561, 580-1.
why so called, 562.
by which party inserted, 562, 580.
in action on contract made by slave or
person in potestate, 562.
in action against principal for an un-
certain sum, 563.
in action against surety for an uncertain
sum, 563.
ea res agatur de fundo mancipando,
562, 581.
became obsolete, 580.
Praeses.
jus edicendi of, 2, 7.
Provinciae, 9.
enforced ndeicommissa in Provinces,
261.
Praestare.
meaning of, in formula, 447.
Praetor.
protection of minors by, 115.
bonorum possessio granted by, 188.
secundum tabulas —
when will is informal, 186.
when praeteritus died before the
testator, 195, 204.
when will becomes invalid, 202.
to persons entitled under a valid
will, 278-9.
contra tabulas —
to suae heredes passed over in the
will, 190.
to sui heredes, other than sons,
i not disinherited individually,
191.
to emancipated children passed
over in the will, 193.
intestati —
to certain persons not entitled by jus
civile, 277-8.
to persons entitled by jus civile, 279.
gives potestas abstinendi to sui et ne-
cessarii heredes, 209.
relieves heredes who are minors and
have accepted a damnosa hereditas,
210.
sometimes shortens time for deliberating
of heres, 212.
fixed a time for acceptance of hereditas,
211,215.
gives patron certain rights in the in-
heritance of libertus, 283-4.
only calls male issue to the succession
at the death of a patron, 285.
gives remedy against debtors who have
been adrogated or have passed into
manus, 312.
introduced actio de vi bonorum rapto-
rum, 417.
quod metus causa, 417.
gave new remedy for damnum infectum,
471, 476.
Praetor (continued).
acquired new power under formulary
system, 475.
introduced actio Rutiliana, 472, 478.
Serviana, 472, 479.
Publiciana, 153, 472, 479.
noxalis for outrage and rapine, 521.
altered penalty for furtum manifestum,
406.
imperium and jurisdictio, 536 et seq.
fideicommissarius.
enforces fideicommissa at Rome, 261.
peregrinus.
origin of, 3.
jus edicendi of, 2, 7.
jus gentium promulgated by, 3.
urbanus.
jus ediceudi of, 2, 7.
precepts of jus gentium adopted
by, 3-
Praetorian "Will, 180, 188.
Precarium: see Permissive occupancy.
Prescription.
acquisitive, 157.
extinctive, 157.
and see Praescriptio.
Primordial rights, 17.
Private International law, 509.
Procedure,
law of, whether earlier than substantive
law, 444.
ancient and modern views respecting,
445-
governed by law of place where the
action is brought, 508.
by legis actiones : see Legis actiones.
formula : see Formulary System.
libellus conventionis : see Libellary
Procedure.
interdict : see Interdictum.
Pro-consul, 9, 139.
Proculus, ii.
Procurator.
Caesaris, 9, 140.
voluntarius, 527.
praesentis, or apud actafactus, 527.
distinct from curator, 1 16.
alienation by, 164.
an insolvent cannot be, 305.
how appointed, 525.
security by, when plaintiff or defendant,
529, 530, 533, 534.
Prodigal.
interdicted from administering his pro-
perty, 1 1 6.
though not a minor, has a curator,
116.
Pro herede gestio.
meaning, 215.
effect of, 210, 211-12, 215.
Fronts and Easements.
correspond to servitudes, 132.
Proof,
burden of, 574, 576.
INDEX
661
Property.
definition of absolute, 128.
different kinds of partial, 128.
Provinciae.
Caesaris, 2, 9, 139 et seq.
Populi Eomani, 2, 9, 1 39 et seq.
titles of the governors of, 9, 139.
tributary, 134.
stipendiary, 134.
ownership of land in : see Provincial
land.
Provincial land.
dominium in, belongs to emperor or
people, 122.
cannot be sacrum, but may be regarded
pro sacro, 123.
cannot be religiosum, but may be re-
garded pro religioso, 122.
cannot be acquired by usucapio, 148 ;
but see 155.
not subject to quiritary dominion, 152.
acquired by longi temporis praescriptio,
155-
distinction between, and Italian land
abolished by Justinian, 156.
Pubertati proximus.
who is, 347.
Puberty.
what is age of, 113, 347.
Publicatio, 378.
Public testament, 181.
Pupillaris substitutio.
meaning and effect of, 218-19.
could only be made to descendants in
potestate, 219, 221.
can IDC made when the descendant is
disinherited, 220.
implied in vulgaris substitutio, 221.
Pupillus -a.
alienation by, 169.
effect of loan made by, 169, 170.
paying a debt to, 169.
conveyance to, 169.
payment to, by mistake, 323, 324.
not bound by contract without autho-
rity of guardian, 341.
can contract, with guardian's authority,
although only seven years old, 341.
surety for, is bound, 349.
nature of tutor's obligation to, 386.
Quaestor.
jus edicendi of, 2.
power of, under empire, 9, 140.
Quarta Antonini, 66, 214.
Quarta Falcidia, 238, 240.
Quasi-possession, 613.
Querella inofficiosi testament!, 198.
Quiritary dominion : see under Domi-
nium.
Ratio, naturalis, 1.
Heal action : nee under Actions.
Real contract,
how entered into, 323.
different kinds of,
mutuum, 323, 323—4.
commodatnm, 324.
depositum, 325.
pignus, 326.
innominate, 328-30.
Recuperator, 22, 26.
Regula Catoniana, 246.
Re-manumission, 32.
Replioatio.
nature, object, and instances of, 559-
60, 579-80.
Repudium, 85, 87.
Rerum universitas, 616.
Res.
divisions of, 122-3.
discussed, 124 et seq.
divini juris, 122, 123.
humani juris, 122, 123.
religiosae, 122.
pro religioso, 122.
pro sacro, 123.
sacrae, 122.
sanctae, 123.
publicae, 123, 126, 127, 128.
privatae, 123, 126, 127, 128.
corporales, 123, 125-6.
incorporates, meaning, 123, 125-6.
how created and transferred, 140 et
seq., 143
mancipii et nee mancipii, 132.
discussed, 135.
examples of, 132, 133.
difference between, 133, 134, 137.
effect of traditio of res mancipii, 147-
effect of alienation of, by wards and
women, 169.
communes, 127.
in nostro patrimonio, 122, 127.
extra nostrum patrimonium, 122, 127.
in patrimonio populi, 128.
nullius, 160, 165.
fungibiles, 323.
perit domino, 369.
judicata, 393, 535, 541 et seq.
pro veritate accipitur, 540.
injudicium deductae, 535, 558.
litiffiosae, 578.
Rescriptum, 6.
Responsa prudentium.
definition, 2.
when binding on judex, 2, 9.
rescript of Hadrian respecting, 2.
a mode of promulgating jus gentium, 4.
effect of law of citations on, 10.
codification, II.
Restipulatio.
a means of checking vexatious litigation,
623.
Restituere.
meaning of, 116, 596.
Bestitutio, in integrum, 116 et seq.
662
INDEX
Bight.
in rem : see jus in rem.
in personam : see jus in personam.
equal, 17.
unequal, 17.
real, 17.
personal, 17.
primordial or primary, 17, 451.
secondary, or sanctioning, 451.
res as the subject of a, 126 et seq.
Robbery.
creates an obligation ex delicto, 402.
explained, 416, 417.
remedy in respect of, 416, 416.
penalty, 416, 416, 454.
requires dolus malus, 417.
legislation respecting, 417.
Sabinians, n.
Sabiuus, II.
Sacramentum.
a legis actio, 455.
procedure in, 455-8, 460-2, 529, 532.
compared to English wager of battle,
460.
use of rod in, compared to surrender of
copyholds by delivery of rod, 460.
Salarium. 385.
Sale : see Emptio et venditio.
Salvius Julianus.
edictum perpetuum of, 8.
a Sabinian, n.
form of allowing certain posthumous
gi-andchildren to be instituted or
disinherited, 196.
Sanction,
of civil law, 451.
Satisacceptio, or Satisdatio, 360.
Satisdatio.
meaning, 360.
when required of defendant in real
action, 527, 530.
in personal action, 530.
by representative of defendant, 528,
529.
not required of plaintiff in real action,
529 ; nor in personal actions, 530.
not required of cognitor, 529.
procurator must give, that principal
would ratify, 529.
by guardian, 529.
curator, 529.
effect of defendant refusing to give in
real action, 531-2.
by heres, 533.
by stipulatio judicatum solvi, 528, 530,
533-4-
pro praede litis et vindiciarum, 529,
533-
Savigny.
as to marriage contract, 47.
coemptio, 71.
nature of capitis deminutio, 98.
Savigny (continued}.
separatio fructuum gives bona fide pos-
session only, 164.
as to interdict quorum bonorum, and
possessoria hereditatis petitio, 281.
as to correality and solidarity, 355-6.
origin of term transscripticia nomina,
364-
place of possession in jurisprudence, 430,
618.
formula consisting of only demonstratio
and condemnatio, 485.
as to time when prescription begins,
547-8-.
interruption of prescription, 549.
effect of prescription on personal
actions, 550.
prescription of exceptiones, 551.
formula in action for an uncertain sum,
581.
quorum bonorum, 598.
uti possidetis, 606.
protection of urban servitudes, 613.
as to possession of superficiarius,
614.
Schools of Jurists : see under Jurists.
Secret trusts.
to evade law, how discouraged, 236.
Sectio bonorum.
vested dominium in vendee, 309, 378.
transferred juris universitas, 309.
how conducted, 378.
Security : see satisdatio.
Self-redress,
in archaic society, 417.
superseded by state intervention, 418.
in case of affront or dishonour, 428.
in defence of possession, 601.
Semel heres semper heres.
meaning of maxim, 222.
Senate.
legislative power of, 2, 5.
Senatusconsultum.
definition, 2.-
force of, at different periods, 5.
sometimes called lex, 6.
Claudianum.
as to intercourse of freewomen with
slaves, 55, 56, 57, 94.
Juventianum.
abolished usucapio pro herede,150, 155,
598.
Tifl.rgia.rmm,
as to succession to Latinus Junianus,
290, 291, 292, 295.
Macedonianum.
prohibited money loans to filiusfamilias
without consent of paterfamilias, 324.
exceptio founded on, 566.
Neronianum.
as to form of legacies, 228, 234, 235.
Orphitianum.
entitled children to succeed their
mothers, 282.
INDEX
663
Senatusconsultum (continued).
Pegasianum.
heres may retain a fourth of a fidei-
commissum, 248, 253 et seq.
heres may be ordered by praetor to
make aditio and transfer to fidei-
commissarius, 249, 254.
fideicommissa placed on same footing
with legacies and inheritances as re-
gards caelibes and orbi, 262.
Trebellianum.
as to rights and obligations of heres
and fideicommissarius, 247, 249, 252
et seq.
the words of, 252.
Tertullianum.
entitled mothers to succeed their chil-
dren, 282.
Velleianum.
made women incapable of being
guarantors, 360.
exceptio founded on, 566.
Separatio, 164.
Sequestration, 325.
Servitude,
nature of, 129.
how created , 141, 143-4, 547.
could not be acquired by usucapio, 1 70.
praedial, 129-30.
persona], 129, 131.
rustic, or rural,
nature of, 129-30.
examples of, 130.
when extinguished by non-user, 144-5.
urban.
nature of, 130.
affirmative, 129-30.
negative, 129-30.
when extinguished by non-user, 144-5.
altius tollendi discussed, 144, 448-9.
ne prospectui officiatur, 146.
ne luminibus officiatur, 146.
ne altius tollatur, 146.
luminum, 130, 146.
actions in respect of, 448-50, 531.
interdicts in respect of, 450, 582, 613.
quasi-possession of, 450, 613.
Serviis -a.
manumitted, becomes dediticius -a, 18,
20.
or Latinus -a, Junianus -a, 18, 22.
or civis Eomanus -a, 18, 20.
how manumitted, 21, 22, 23, 34.
form of direct bequest of liberty to, 259.
obstacles to, attaining civitas, 20, 21,
23, 25.
how manumitted by master under
twenty, 33, 34.
persons who cannot manumit, 33, 34.
could not be manumitted by will unless
one of a limited number, 34 ; Jus-
tinian's change, 36.
power of master over, recognized by
jus gentium, 36, 38.
Servus -a (continued}.
power of master over, 36, 37, 37-8.
has no caput, 39.
is incapable of marriage, 48.
status of offspring of, and freeman, 55,
57, 58.
and freewoman, 55, 56, 58.
freewoman who becomes, 58, 59.
a free person who might become, by Sc.
Claudianum, 57, 94.
evasion of the census, 94.
residence at Rome contrary to lex
(Aelia Sentia?), 94, 95.
surrender by pater patratus, 95.
evasion of military service, 95.
condemnation for a capital offence,
95-
condemnation of a freedman for in-
gratitude, 95.
allowing himself to be sold in order to
share the price, 95.
in bonis acquires for bonitary proprietor,
171.
right of usufructuary to dominimn, &c.,
acquired by, 171.
obligations acquired by, 387.
possessed bona fide, acquires for pos-
sessor, 172.
instituted by master is heres necessarius,
208.
may be instituted heres by master or a
stranger, 222.
effect of institution of, as heres, 222-3.
liberty may be given to, by fideicom-
missum, 258.
effect of liberty being given to, alienus -a
by fideicommissum, 259.
cannot enter into valid stipulations
with master, 340.
cannot be adstipulator, 348.
liability of surety of, 349.
who has benefit of obligationes acquired
by, 387-8.
remedy against person who kills, 419,
423-
outrage may be inflicted on master
through assault, &c., upon, 426.
liability of master under contract by,
as exercitor or institor, 515-16.
by master's order, 515.
in trade, with master's knowledge,
516.
for property converted to his use by,
517.
when delict by, renders him liable to be
surrendered in satisfaction, 521-2.
has no possession, 610.
Sestertius.
change in value of, 532.
Severus.
constitution of, and Antoninus, as to
burden of proof in action on cautio,
576.
Slave : see Servus.
664
INDEX
Socle tas.
a consensual contract, 366.
different kinds of, 375.
division of profit and loss under, 376,
377.
how dissolved, 376-7.
effect of capitis deminutio ow, 377,
.378-
umversorum bonorum, 377.
universorum quae ex quaestu veniunt,
377-
publicanorum, 377.
an institution of jus gentium, 377.
passing of property under, 377.
when called leonina, 377.
degree of diligence required, 430
Soldier.
effect of error of law by, ill.
peculiarities of will of, 181, 182.
has beneficium cornpetentiae, 483.
Solidarity.
meaning, 354.
how, originates, 354.
point of agreement between, and cor-
reality, 355.
great differences between, and correality,
355-
Solutio.
performance of an obligation, 316, 389.
three elements of, 316.
effect of substituted, 384, 394.
imaginaria, by acceptilatio, 389.
per aes et libram, 39O.
effect of, by third party, 394.
Sovereign States,
nature of obligations between, 337.
Specificatio.
meaning, 167.
examples of, 162.
Sponsio.
different classes of, 442.
a kind of wager, 445, 589.
poenalis, 445, 528, 532.
in interdict procedure, 589, 608.
praejudicialis, 445, 528, 532.
et restipulatio fertiae partis, 462-3.
on quorum bonorum, 606.
as check on vexatious litigation, 623,
625.
Sponsor.
how interrogated, 349.
can only be accessory to stipulationes,
349.
heres of, not bound, 350.
in Italy, the liability of, ceases in two
years, 350.
each, only liable for his share, 350.
in provinces each, is liable for the whole,
but epistola of Hadrian gave relief,
350.
effect of, paying more than his share,
351.
entitled to declaration by creditor of the
amount of the debt, &c., 351.
Sponsor (continued).
has benefit of lex Cornelia, 352.
cases to which the lex does not apply,
352.
not bound for more than principal, 352.
has actio mandati against principal,
353.
sometimes bound when principal is not,
349.
can recover double from principal unless
repaid within six months, 353.
could only intervene when both parties
were cives Romani, 359.
ceased to be employed, 359.
State.
dominium of the, 127.
usureceptio of mortgaged property sold
by the, 151.
claim of the, to bona vacantia, 206.
Status,
law of, 15-16.
falls under the three heads of libertas,
civitas, and familia, 1 8.
has disappeared in modern jurisprudence,
19.
liberorum, 53 et seq.
Stipendiaria praedia.
meaning, 134, 140.
res nee mancipii, 134.
Stipendium.
meaning, 77.
Stipulatio.
between heres and fideicommissarius,
247, 249, 254.
Aquiliana, 394.
jtidicatum solvi, 528.
clauses in, 533-4.
pro praede litis vindidarum, 528, 533.
fructuaria, 533, 589, 608.
and see Verbal contract.
Subscriptio.
a form of rescript, 60, 61.
Substitutio.
vulgaris, explained, 218-19.
pupillaris, explained, 219-21.
pupillari-s, implied from vulgaris and
vice versa, 221.
Succession,
meaning, 255.
universal, 175, 255.
only admitted inter vivos in two cases,
3*5-
singular, 255.
Superficies,
meaning, 131.
nature of possession involved in, 614.
Sureties.
different kinds of, 348-9, 359.
to what obligations they can be accessory,
349.
rights and liabilities of, 349-53, 359-
60.
see Sponsor, Fidepromissor, Fide-
jussor.
INDEX
665
Syngrapha.
a species of literal contract, 362 ; and
see 365.
in time of Justinian, 365.
Taxatio.
a limitation in condemnatio, 483.
Taxation.
system of, 140.
Tempus.
continuum, 216.
utile, 216.
Testament! factio.
fully explained, 182 et seq.
Testamentum : see "Will.
inofficiosum, 198, 213.
Theodosius II.
law of citations, 10.
constitution ; as to promise of dos by
third party, 338.
as to pendency of actions, 538.
as to thirty years' praescriptio, 546.
any prohibitive law is a lex perfecta, 566.
Things : see "Res.
Tiberius.
changed legal effect of confarreatio, 69.
regulated jus respondendi, 10.
Title.
described, 132, 158.
of real rights, division of, 132.
differs from privilegium, 158.
civil, of res singulae, mancipatio, 132-4,
J.35-
in jure cessio, 134, 136.
usucapio, 147, 156.
adjudicatio, 157.
lex, 158.
natural, of res singulae, traditio, 159,
164.
occupatio, 160, 165.
accessio, 160-2, 165, 166.
specificatio, 162, 167.
perceptio fructuum, 164.
confusio, 1 66, 168.
synopsis of, 167.
Traditio.
brevi manu, 135.
a title of natural law, 132, 154.
ownership in res nee mancipi trans-
ferred by, 133, 137.
described fully, 137 et seq.
effect of, of res mancipi, 147, 152.
was never fictitious, 139.
may be conditional, 139, 343.
Trajan,
business of miller may confer civitas
Bomana, 32.
checked inhumanity of a father, 39.
constitution, as to position of Latinus
Junianus who has acquired jus Qui-
ritium by imperial grant, 293.
Transscripticia nomina.
certain, entries in account books, 361.
origin of the term, 364.
Trebatius.
opinion of, as to codicils, 263.
Tribunes.
had little power under empire, 9.
Tributaria praedia.
meaning, 134, 140.
res nee mancipii, 134.
Tributum, 77.
Triplicatio.
nature and object of, 580.
Tutela.
definition, 90.
general explanation, 90.
legitima agnatorum, 91, 92, 94.
patronorum, 101.
of Latins devolves on quiritary owner,
102.
fiduciaria, 102.
cessicia, 103.
mulierum,i08, iio-n.
how terminated, 94, 112-13.
an institution of jus civile, 104, in.
and see Tutor.
Tutor.
testamentariug, who may appoint, 88.
to whom, may be appointed, 88, 89.
form of appointment, 89.
effect of appointing, before heres, 241.
to commence to act after death of
heres, 241.
incerta persona cannot be, 243.
optio or selection of, devised to wife in
manu, 89.
may be plena, 89.
angusta, 89.
dativut, 90, 91.
optivuz, 90.
duties of, 90-1.
legit imus, agnate, 91, 92, 94.
patron, 101.
other instances, 102.
fiduciaries, 102.
cessicius, 103.
when, may be superseded by another
tutor, 104-6.
praetorius, 106.
Atilianut, 107.
ex lege Julia et Titia, 107.
mulierum, 109, HO.
dispute as to number of kinds of, 108.
kinds of, in time of Justinian, 108.
when duties of, terminated, 112-13.
when, required to give security, 114.
distinct from curator, 116.
effect of loans and alienations without
sanction of, 169, 170.
no condition can be annexed to sanc-
tion of, 334.
magistrates cannot appoint, condition-
»%> 334-
nature of obligation of, to pupillus, 386.
degree of diligence required of, 430.
as to acquisition of possession through,
616.
666
INDEX
Tutor (continued).
actions by, on behalf of ward, 524, 527.
security in, 529.
Ulpian.
authority of writings of, 10.
short account of, 13.
as to slave under thirty, or of bad char-
acter, instituted heres of an insol-
vent, 26.
definition of a will by, 1 78.
discussion of the reasons given by, why
dediticius could not make a will, 295
et seq.
Unde cognati, 277, 278, 282.
Unde legitimi, 282.
Unde liberi, 277, 282.
Unde vir et uxor, 282.
Universitas.
personarum, 1 1 8 et seq.
juris, 126.
how acquired, 175.
by will, 176 et seq.
by intestate succession, 175, 269 et
seq.
by bonorum venditio, 301.
by bonorum sectio, publicatio, 309,
378.
by arrogatio, 312.
by in inanum conventio, 312.
by in jure cessio hereditatis, 313-14.
rerum, 616.
Usage.
a source of law, 13.
Usucapio.
a title of jus civile, 132.
conditions of, 156.
libertatis, 145.
changes bonitary into quiritary do-
minion, 147.
length of possession required for, 147.
exceptions as to land, 149, 151.
possession given by a non-proprietor
may produce, 149.
reason, 149.
things which cannot be acquired by,
147, 148.
requires bona fide possession, 147 ; but
see 149.
why movables are seldom acquired by,
148.
lucratira, pro Jierede, 150. 154.
land may be acquired in a year by,
149.
motive for allowing, 149, 154.
made revocable, 150, 155.
usureceptio is a species of, 151.
of no avail against heres necessarius,
150.
of thing mortgaged to the state and
sold, 151, 155.
law relatingto, remodelled by Justinian,
156.
Usucapio (continued}.
distinguished from limitation of actions,
'57-
how far recognized in English law, 157.
usufructuary cannot acquire a slave held
in usufruct by, 172.
bonorum possessor, or emptor, acquires
dominium by, 302.
why praescriptio is sometimes used as
equivalent to, 581.
effect of, of a universitas, as to the
elements of which it is composed,
616-17.
Usucapion-possession, 156, 610, 614.
Usureceptio .
explained, 157.
Usus.
a mode of creating manus, 66.
a personal servitude, explained, 131.
extinguished by capitis deminutio mini-
ma till Justinian, 313.
Ususfructus.
a res incorporalis, 123.
effect of in jure cessio of, 141.
how created, 141.
as to things acquired by a slave subject
to, 171.
whether possession can be acquired
through a slave subject to, 172.
extinguished by capitis deminutio mini-
ma till Justinian, 313.
Vadimonium.
for second appearance of defendant to
receive a judex, 495.
by defendant to reappear after adjourn-
ment, 624.
amount of, in different actions, 624.
different from cautio judicio sisti, 626.
judicium solvi, 626.
Valentinian III.
law of citations, 10.
Vangerow.
as to nature of aquaeductus, 1 30.
effect of pactio in creating servitudes,
144.
whether separatio fructuum gives bona
fide possessor dominium, 164.
pater being witness to will of filius-
familias, 180.
interdictum quorum bonorum, and pos-
sessoria hereditatis petitio, 281.
correality and solidarity, 355.
place of possession in jurisprudence,
431.
claim of compensatio and deductio,
5H-
time prescription begins to run, 548.
interruption of prescription, 549.
effect of prescription onpersonal actions,
55°-
prescription of exceptiones, 551.
quorum bonorum, 598.
INDEX
667
Vangerow (continued}.
protection of urban servitudes, 613.
possession of superficiarius, 614.
Verbal contract,
its origin, 333.
created by formal question and answer,
330, 331.
modes of contracting without previous
interrogation, 332, 338.
called stipulatio, 333 et seq.
form of, peculiar to cives Romani, 331 ;
why> 337-
which aliens may use, 331.
necessity for consecrated forms in,
abolished, 338.
effect of impossibility of object or,
non-existence of subject-matter of,
338-9.
impossible condition in, 339, 342.
to convey promisee's property to
promisee, 339.
to convey after or day before death of
either party, 339, 345.
want of correspondence between
question and answer in, 340.
between pater and filiusfamilias, 340.
where promisor is a filiafamilias,
servus, wife in manu, or person in
mancipio, 340.
one of the parties to, being deaf, dumb,
or a lunatic, 341.
the promisor being a pupillus -a, 341.
for payment to stipulator and a third
party, 340, 344, 345, 347.
for payment to stipulator or a third
party, 340.
certain objects which could not be
secured by, 341.
reason why, became an universal form
of contract, 333-4.
no consideration essential to, but pro-
misor may plead exceptio, 335.
effect of a written document accom-
panying, 334.
is unilateral, 366.
extinguished by acceptilatio, 413.
Vespasian.
confers Latinitas on Spain, 28.
alters rule as to offspring of freeman
and slave, 55.
Sc. Pegasianum in reign of, 248,
»53-
Vexatious litigation,
checks upon, 620.
on part of defendant —
sometimes double damages, 620, 625.
sponsio, 621, 625.
oath, 622.
defendant becoming ignominiosus
in some cases, 623.
penalty if in jus vocatio be disre-
garded, 624.
security for appearance if the case
be adjourned, 624, 626.
Vexatious litigation (continued).
on part of plaintiff —
judicium calumniae, 622, 623, 625.
contrariumjudicium,622, 623, 625.
oath, 622.
restipulatio, 623, 625.
some persons cannot sue without
praetor's leave, 624.
in time of Justinian, 626.
Vindicatio.
a name for real action, 443.
Vindiciae dicendae, 598, 609.
Vindicta.
manumission by, 21, 23.
when compulsory, 21.
Vis.
ex conrentu, 607, 609.
quotidiana, 600.
armata, 586, 600.
when, could be repelled by vis, 60 1.
Vulgaris substitutio.
meaning and general account of, 218-19.
effect of cretio imperfecta upon, 218,
221.
implied in pupillaris substitutio, 221.
•Wife.
power of husband over : see Manus.
capacity to take under husband's will,
184.
Wild animals.
are property of first occupant, 160.
how property in, is lost, 160.
effect of, being partly tame, 165.
"Will.
definition, 178.
made in comitiis calatis, 176, 1 78.
in procinctu, 176, 179.
per aes et libram, 176, 179.
praetorian, 180, 188.
nuncupative, 180.
by jus tripertitum, 180.
public, 1 8l.
of a soldier, 181, 182.
in time of Justinian, 180-1.
a form of manumission, 21, 22, 24.
who could make a, 183.
who could take under a, 183-5.
who could be a witness of a, 177-8, 185.
restrictions on disposition by, 2 1 3.
form necessary for instituting heres in,
185, 187.
effect of, when informal, 186, 202, 203,
204.
sui heredes being passed over in a,
189 et seq., 194 ; change of Justinian,
195-
emancipated children being passed
over in a, 193, 198.
form necessary for disinheriting sui
heredes by a, 191 ; change of Jus-
tinian, 195.
effect of grant of contra-tabular posses-
sion on a, 198.
668
INDEX
"Will (continued).
form of vulgaris substitutio in a, 218-19.
pupillaris substitutio, 219-21.
is invalidated by erroris causae probatio
creating patria potestas except in
certain cases, 200.
birth of postumi liberi who have not
been disinherited and who survive
testator, 191, 195.
a person succeeding to the place of
suus heres, unless provided against
in the will, 192, 195.
adrogatio and adoptio, 199 ; but gee
200.
receiving a wife in manu, or marrying
a person already in manus, 199,
200.
manumission of a son after first or
second sale, 200.
subsequent will, 201.
capitis deminutio of testator, 201.
express revocation but not by mere
change of intention, 204, 206.
a successful querella testament! in-
officiosi, 198.
new form of revocation in Justinian's
time, 206.
not always inoperative though it be-
comes invalid, 202, 205.
informal, might sometimes take effect
as a codicil, 264.
formalities attending the opening, &c.,
of a, 268.
"Witness.
who may be, of a will, 177, 178, 185.
Woman.
a, cannot adopt, 64 ; but see 65.
formerly could not be adrogated, 63,
65-
when a, is subject to manus, 66 et seq.
how released from manus, 85.
testamentary capacity of a, 68, 72, 182.
tutela over a, who has attained the age
of puberty, 103, 104-6, no.
when exempt from, 88, 112.
by law of Bithynia, 109.
ceases before Justinian's time, in,
170.
agnatic, abolished, 72, 92.
fiduciary, 72.
testamentary, 88.
authority of tutor of a, who is of age
"Woman (continued).
a mere formality in most cases, 109,
no.
tutor of a, is not liable in respect of his
administration, 109, 110.
effect of error of law by a, 1 1 r.
how tutela over a, is terminated, 112.
a, might have both a tutor and curator,
116.
alienation by a, 148, 169, 1 70.
conveyance to a, 169.
payment of debt to a, when a discharge,
170.
effect of will of a, when unauthorized
by tutor, 186.
limited capacity of a, to take under a
will, 184, 239, 260.
rights, &c., of a, when sua heres : see
under Heres.
when a, is entitled to succeed as agnate,
272, 275.
a, agnate beyond sister entitled to
bonorum possessio as cognate, 277.
effect of payment to a, by mistake,
323.
sponsor or fidepromissor of a, may be
bound, 349.
a, could not be guarantor, 360.
effect of acceptilatio by a, without
tutor's authority, 390.
a married,
a sua et necessaria heres when in
manus of testator, but has potestas
abstinendi, 209, 269.
right of succession to husband, 282.
in manu, cannot be bound by stipula-
tion to husband or to any one else,
340.
in manu, to what extent could be ad-
stipulator, 348.
in manu, as to obligation of, 387.
when entitled to beneficium compe-
tentiae against husband, 483.
Zeno.
emphyteusis is a contract sui generis
and must be in writing, 373.
changes in law as to plus petitio, 509,
510.
payment of costs by loser of the cause,
626.
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